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PRACTICAL 


TREATISE    OF    POWERS; 


BY 


THE  RIGHT  HON.  SIR  EDWARD  SUGDEN. 


THE    THIRD    AMERICAN,    FROM    THE    SEVENTH    LONDON    EDITION,    WITH 
ADDITIONAL   REFERENCES    TO    AMERICAN    CASES. 


IN   TWO   VOLUMES. 
VOL.  II. 


PHILADELPHIA: 

T.    &   J.    W.   JOHNSON   &   CO. 
LAW  BOOKSELLERS,  PUBLISHERS,  AND  IMPORTERS. 

197  CHESTNUT  STREET. 

'i"8*5  6*"' 


T 


Entered  according  to  the  Act  of  Congress,  in  the  year  1856,  by 

T.  &  J.  W.  JOHNSON  &  CO., 

In  the  Clerk's  Office  of  the  District  Court,  for  the  Eastern  District  of  Pennsylvania. 


WEST   BROOKFIELD,    MASS. 
PEE83    OF    0.    a.     COOKE    AND    CO. 


A 


TREATISE  OF  POWERS 


CHAPTER  yill. 

OP  THE   EFFECT   OF  THE   CREATION   AND   EXECUTION   OF   POWERS. 


SECTION  I. 

OP  THE   EFFECT   OF   THE   CREATION   OF   POWERS. 

1.  Void  powers  do  not  afifect  estates  lim-  i    7.  Same  as  to  personalty. 

ited.  9.  Power  of  revocation  suspends  payment 

2.  Estates   vested,  although   there  is  a  j  of  portions, 
power  of  revocation.                             10.  Conveyance  under  contract  for  sale,  to 


n 


Estates  limited  in  default  of  appoint-  I  uses  to  bar  dower,  revokes  a  will, 

ment  also  vested.  111.  Altered  by  1  Vict.  c.  '20. 


5.  So  if  use  results.  i  12.  A  mortgage  only  a  revocation  pro  tan- 

6.  Or  is  limited  to  settlor.  |  to,  unless  a  regular  power  is  created: 

How  3  &  4  Will.  4,  c.  106,  operates.  ;  now  1  Vict,  c'  2G. 


1.  "Where  a  power  of  revocation  is  deemed  void,  as  in  tlic  Duke 
of  Marlborough's  case  Ixjforc  noticed, («)  of  course  the  estates 
actually  limited  in  the  instrument  creating  the  power  cannot  be 
affected  l>y  the  j)Ower,  but  will  take  cflfcct  in  the  same  manner  as 
if  it  had  not  been  inserted  in  the  instrument.  And  the  law  is  the 
same  in  regard  to  estates  given  in  default  of  any  api)oint- 
raent  under  a  power,  *which  is  void  in  its  creation.  There-  [  '-  ] 
fore,  if  under  a  covenant  to  stand  seised  a  general  power 

(u)  Supra,  vol.  1.  p.  178. 


4  SUGDEN   ON   POWERS. 

of  a])pointment  be  reserved,  or  given  to  any  person,  and  for  want 
of  such  appointment  tlie  estate  be  limited  to  some  person  within 
the  consideration  of  blood,  or  niarriaj^c,  as  the  power  would  be 
void,  the  estate  limited  iu  default  of  appointment  would  take 
effect  in  possession,  (i) 

2.  It  is  obvious,  that  every  power  of  appointment  is,  strictly 
speaking,  a  power  of  revocation  to  the  extent  of  its  operation ; 
but  still  there  is  a  striking  distinction  between  estates  actually 
limited  in  a  settlement  with  a  power  of  revocation,  and  estates 
limited  in  default  of  the  exercise  of  a  preceding  power  of  appoint- 
ment. In  the  first  case,  the  estates  are  vested  subject  to  be 
revoked,  or  defeated  by  the' exercise  of  the  power. 

3.  AVhether,  in  the  latter  case,  the  estates  limited  in  dcfixult  of 
appointment  are,  during  the  continuance  of  the  power,  contingent 
or  vested,  has  been  the  subject  of  much  discussion.  The  question 
arose  in  Leonard  Lovie's  case,(c)  and  it  was  determined,  that  the 
estates  limited  in  default  of  api)ointment,  were  contingent. (cT) 
In  Walpole  v.  Lord  Conway, (e)  Lord  Hardwicke  held  the  same 
opinion.  In  Cunningliam  v.  Moody(/)  he  is  supposed  to  have 
altered  his  opinion,  and  to  have  determined;  that  the  power  of 
appointment  does  not  suspend  the  vesting  of  the  subsequent  re- 
mainders ;  and  in  Doc  v.  Martin, (5^)  after  a  splcnded  argument, 
it  was  solemnly  decided,  that  the  estates  limited  in  default  of 
appointment  were  vested,  subject  to  be  divested.  The  Court 
relied  on  Cunningham  v.  Moody  in  opposition  to  Leonard  Lovie's 
and  Lord  Conway's  cases. 

Mr.  Fearne,  who  discusses  these  cases,(/i)  enforces  the 
[  *3  ]  *authority  of  Doe  and  MarUn ;  and  between  the  case 
mider  consideration,  and  those  upon  limitations  after  a 
contingent  limitation  of  the  fcc-simj)lc,  takes  this  clear  distinction, 
that  in  the  latter  the  limitation  is  oris^inallij  oxidi  finally  contained 
iw,  and  made  by,  the  conveyance  ilself,  %hile  the  former  have  no 

(6)  Warwick  v.  GarrarJ,  2  Vern.  7;  Goodtitle  v.  Pettoe,  Fitzg.  299. 
(c)  10  Rep.  78.     See  fo.  85  a. 
(rf)  See  2  Ves.  jun.  704,  5,  6. 

(e)  3  Barnard.  153.     See  4  Term  Rep.  57  n  ;  and  see  2  Ve3.  jun.  709. 
(/)  1  Ves.  174. 

(§■)  4  Term  Rep.  39;  and  sec  Doe  v.  Dorvill,  5  Term  Rep.  518;  Doe  v.  Weller,  7 
Term  Rep.  478. 

(/i)  Cent,  Remainders,  290-399>  4th  edit. 


ESTATES   VESTED   IN   DEFAULT   OP   APPOINTMENT.  5 

existence  till  the  j)Ower  is  executed,  so,  that,  iu  truth,  there  is  no 
estate  limited  until  an  appointment  is  made. 

Lord  Rosslyn,  in  a  still  later  case,(z)  at  first  considered  this 
doctrine  very  doubtful.  He  insisted,  that  in  Cunningham  v. 
Moody,  it  was  not  necessary  to  determine  the  point,  and  treated 
the  case  of  Doc  and  Martin  as  a  case  of  compassion.  However 
the  point  did  not  then  call  for  a  decision ;  and  in  pronouncing  his 
decree  he  did  not  advert  to  it.  In  a  subsequent  case  he  treated 
it  as  clear  that  the  power  did  not  prevent  the  estates  from  vest- 
ing. (/»;)  Without  considering  whether  it  was  absolutely  necessary 
to  decide  the  point  in  Cunningham  and  Moody,  Lord  Hardwicke's 
opinion  is  too  clearly  expressed  to  be-  misunderstood.  He  said, 
that  the  power  of  appointment  did  not  make  any  alteration  in 
vesting  of  the  remainder  in  foe  ;  for  the  only  effect  thereof  was 
that  the  fee  which  was  vested  was  thereby  subject  tq  be  divested. 

Besides  these  leading  cases  there  arc  several  dicta  upon  this 
point.  In  a  case  iu  Lord  Raym.,(Z)  Powell,  Justice,  said,  that  a 
fee-simple  be  limited  to  such  persons  as  A.  shall  appoint  by  his 
will,  remainder  over,  that  is  a  good  remainder  vested  till  the 
appointment.  In  Goodhill  v.  Brigham,(wi)  Mr.  Justice  BuUer 
put  tlie  very  same  case,  namely,  a  power  to  A.  to  appoint  the  fee, 
and  in  default  of  appointment,  to  himself  in  fee,  and  held  that  A. 
could  take  nothing  till  his  death,  or  till  his  appointment.  But  he 
must  for  the  moment  have  forgotten  tlio  decision  in  Doe  and  Mar- 
tin, which  was  decided  eight  years  before,  whilst  he  was  a 
•Judge  of  the  King's  Bench,  and  in  which  he  concurred ;  [  *4  ] 
and  in  a  case  which  occurred  about  the  same  period  as 
Goodliill  V.  Brighton,  he  treated  the  fee  as  clearly  vested  till 
appointment,  and  referred  to  the  case  of  Doe  and  Martin  as  an 
authority  in  that  respect.  Lord  Thurlow,(w)  Lord  Alvanley,(o) 
Lord  Rcdcsdale,(7;)  Sir  W.  Graut,  Master  of  the  Rolls,(g)  and 

(i)  Smith  V.  Lord  Camclford,  2  Ves.  jun.  698. 

(/c)  See  5  Ves.  jun.  748. 

(0  Vol.  2,  1150. 

(m)  1  Bos.  &Pull.  198. 

(h)  Madoc  V.  Jackson,  2  Bro.  C.  C.  588.     See  1  Rep.  t.  Redesdale,  293. 

(o)  See  4  Ves.  jun.  630;  Vanderzee  v.  Aclom,  ib.  771. 

(;))  See  1  Rep.  temp.  Redesdale,  293. 

(g)  See  7  Ves.  683. 

1* 


6  .SUGDEN   ON   POWERS. 

Lord  El(lon,(/-)  have  all  expressed  themselves  decidedly  of  the 
same  (titiiiiou  ;  and  in  a  late  case  in  Ireland,  Lord  Manners  treated 
Doe  V.  Martin  as  a  clear  authority  lor  this  construction,  and 
decided  accord inoly.(A') 

4.  The  result  of  the  authorities  therefore  is,  that  the  ])owcr  of 
ap})ointme»t  does  not  prevent  the  vesting  of  the  estates  limited  in 
default  of  api)ointment.(/) 

5.  Where  no  use  is  expressed  until  or  in  default  of  appointment, 
it  of  course  results  to  the  settlor  :  as  where  he  makes  a  feoft'ment 
to  the  use  of  such  persons  as  he  shall  a})[)oint  by  will,  he  is  seised 
in  fee  until  he  exercises  his  power. («) 

G.  Whore  the  use  was  actually  limited  to  the  settlor  in  default 
of  ap})ointmcnt,  he  was  still  in  of  the  old  use,  and  the  case  was 
more  strongly  in  favour  of  the  vesting.  But  now  by  the  8  &  4 
Will.  4,  c.  lOG,  s.  3,  where  any  land  shall  have  been  limited  by 
any  assurance  executed  after  the  31  December,  1833,  to  the  per- 
son or  to  the  heirs  of  the  person  who  shall  thereby  have  convey- 
ed tlie  same  land,  such  person  shall  be  considered  to  have  acquir- 
ed the  same  as  a  purchaser  by  virtue  of  such  assurance,  and  shall 
not  be  considered  to  be  entitled  thereto  as  his  former  estate  or 
part  thereof.  The  estate  of  course  still  vests,  although  the  quali- 
ty of  it  is  altered. 
[  *5  ]  *7.  It  is  equally  clear  that  the  same  doctrine  applies 
to  personalty ;  and  that  where  the  money  is  absolutely 
given  over  in  default  of  appointment,  it  is  vested,  suljject  to  be 
divested  by  the  execution  of  the  power  ;(.-c)  and  it  is  immaterial 
whether  the  power  be  merely  to  distribute,  or  to  select  and  ex- 
clude, (/y) 

8.  Mr.  Isutlcr,  in  his  elaborate  argument  in  Cliolmondeley  v. 
Clinton,  laid  down  five  distinct  propositions  upon  the  effect  of 
powers,  making  gifts  in  default. of  appointment  vested  or  contin- 
gent.    The  two  first  were  founded  upon  the  exploded  doctrines  in 

(r)  See  10  Ves.  jun.  265. 

(s)  Osbrey  v.  Bury,  1  Ball  &  Beatty,  53. 

(/)   Heron  v.  Stokes,  2  Dru.  &  War.  8'J. 

(w)  6  Rep.  18  a. 

(x)  Coleman  v.  Seymour,  1  Ve3.  209,  See  2  Ves.  208;  Gordon  v.  Levi,  Ambl. 
364;  Cholraondley  v.  Meyrick,  1  Eden,  77;  Rooke  v.  Rooke,  2  Eden,  8;  Reade  v. 
Reade,  5  Ves.  jun.  748. 

(y)  See  Robinson  v.  Smith,  G  Madd.  198. 


WHERE   A   MORTGAGE   REVOKES   A   WILL.  7 

Leonard  Lovie's  case,  and  Walpole  v.  Lord  Conway :  the  three 
last  upon  the  later  authorities,  which,  for  the  purpose  of  distin- 
guisliing  them  from  the  two  former,  he  endeavored  to  refer  to  this 
ground,  viz.  that  in  these  latter  cases  the  remainders  over  are 
vested  in  the  specified  objects,  not  in  consequence  of  the  Hmita- 
tions  over,  but  in  consequence  of  the  very  limitations  which  con- 
tain the  power  ;  that  is,  that  the  objects  would,  in  the  absence  of 
a  gift  to  them  in  default  of  a{)pointment,  have  taken  by  imjilica- 
tion  under  the  terms  of  the  power  itself.  But  these  distinctions 
could  not  be  supported.  The  early  authorities  have  been  over- 
ruled. (2^) 

9.  Where  a  term  is  created  by  a  settlement  to  raise  portions, 
with  a  general  power  of  revocation  of  the  settlement,  although  the 
portions  become  actually  due  yet  while  the  power  subsists,  it  sus- 
pends and  prevents  the  portions  from  hcmg  pa7/able,  because  the 
donee  of  the  power  may  revoke  at  any  time  before  the  portions 
are  raised  and  paid,  although  the  right  to  the  portions  is  become 
vested  under  the  terms  of  the  settlement,  (a) 

*10.  The  essential  difference  between  a  power  and  an  [  *0  ] 
estate  has  led  to  the  distinction,  that  although  a  partition 
vrill  not  revoke  a  previous  devise  where  the  estate  is  limited  to 
the  devisor  in  fee,  yet  if  the  estate  be  limited  to  such  uses  as  he 
shall  appoint,  the  partition  will  revoke  the  devise,  although  the 
fee  be  limited  to  him  in  default  of  ap})ointment.(Z>)  And 
it  has  recently  been  determined, (I)  tliat  *a  devise  of  free-  [  *T  ] 

(2)  2  Jac.  &  Walk.  10.60. 

(fl)  Reresby  v.  Newland,  2  P.  Wms.  93;  affd.  Dom.  Proc.  2  Bro.  P.  C.  487.  See 
Vane  v.  Lord  Dungannon,  2  Sclio.  &  Let"  118;  Wyuter  v.  Bold,  1  Sim.  &  Stu.  507. 

(/')  Vide  supra,  vol.  1,  p.  107,  and  the  cases  there  cited;  and  Barton  v.  Croxall, 
Taml.  Ifi4. 

(I)  In  adverting  to  this  point  in  the  Treatise  on  Purchasers,  4th  edit.  p.  148,  the 
author  added  a  note  on  Lord  Rosslyn's  ohser^'ation  in  2  Ves.  jun.  429,  430,  that  the 
rule  in  equity,  that  a  devise  of  an  equitable  estate  is  not  revoked  by  taking  the  legal 
estate,  wivs  first  established  at  law.  In  Rawlins  and  Burgis  the  above  note  was,  I  am 
told,  cited  by  the  Court  with  approbation.  The  reporters  have  made  the  following  ob- 
servations on  the  note  in  question: — "  It  seems  extraordinary  that  such  an  error 
should  he  imputed  to  Lord  Rosslyn  in  his  very  able  judgment  upon  this  subject,  as 
the  conception  that  a  feoffment  to  the  use  of  a  man  before  the  statute  of  uses  confer- 
red the  legal  seisin,  or  thit  the  fact  was  at  variance  with  his  lordship's  statement,  that 
the  feoifment  was  to  the  use  of  the  devisor.  As  an  instance  of  a  decision  at  law,  that 
by  tiikiiic;  the  legal  estate  a  devise  is  not  revoked,  liis  lordship  translates,  correctly 
and  literally,  this  case  from  RoUe,  who  states  shortly  the  ground,  that  after  the  feoflF- 


8  SUGDEN   ON   POWERS. 

hold  estate  contracted  for,  is  revoked  by  a  subsequent  conveyance 
to  the  usual  uses  to  bar  dower,  where  the  contract  docs  not  pro- 
vide lor  -the  conveyance  of  tlie  estate  to  such  uscs.(c) 

11.  But  tlie  law  is  now  altered  by  the  1  Vict.  c.  26,  which 
provides,  that  no  conveyance  or  other  act  made  or  done  subse- 
quently to  the  execution  of  a  will  of  or  rclathig  to  any  rent  or 
personal  estate  therein  comprised  (except  an  act  amounting  to  a 
revocation  under  the  Act)  shall  prevent  the  operation  of  the  will 
with  respect  to  such  estate  or  interest  in  such  real  or  personal 
estate  as  the  testator  shall  have  power  to  dispose  of  by  will  at  the 
time  of  his  dcatli.(tZ)  And  it  further  provides,  that  every  will 
shall  Ijc  construed,  with  reference  to  the  real  and  "personal  estate 
comprised  in  it,  to  .speak  and  to  take  eft'ect  as  if  it  had  been  exe- 

ment  the  devisor  ha<l  the  use  as  before;  guarding  against  any  inference  from  that  fact, 
and  prob.ibly  thinking  it  unnecessary  to  add  the  general  ctfect  of  the  statute  trans- 
ferring the  seisin.  To  that  Lord  Rosslyn  evidently  points;  meaning  to  represent  the 
case  as  amounting  to  an  authority  for  his  position,  considering  the  distinction  as  to 
the  mode  of  acquiring  the  legal  estate,  whether  by  the  statute  or  by  conveyance,  im- 
material."    2  Ves.  &  Bea.  38.5  n. 

The  object  of  the  note  in  the  book  on  Purchases  was  not  to  impute  error  tc 
Lord  Ilosslyn,  who  in  fact  borrowed  the  observation  from  Lord  Ilardwicke,  but  to  show 
that  no  such  rule  of  law  ever  existed.  If,  however,  as  it  is  insisted,  Lord  Rosslyn  did 
understand  the  case  correctly,  he  must  have  known  that  it  did  not  establish  the  rule 
which  he  stated,  for  RoUe  himself  shows  that  the  statute  of  uses,  by  turning  the  use 
into  a  possession,  destroyed  the  use,  and  consequently  any  devise  of  it  before  the  stat- 
ute. The  reason  why  the  will  was  not  revoked  in  the  case  in  Rolle,  ciCed  by  Lord 
Rosslyn,  wa?,  "  that  the  devisor  had  the  same  use  which  he  had  before;"  consequent- 
ly the  legal  estate  wiis  vested  in  him,  not  by  the  conveyance  but  by  the  statute  of  uses, 
and  tlie  will  must  have  been  within  the  saving  in  the  statute.  If  the  will  had  not  been 
saved  by  the  statute  it  would  have  had  no  operation.  Lord  Rosslyn  was  certainly  in 
error.  He  either  overlooked  the  circumstance  that  the  feoffment  was  to  the  use  of  the 
devisor,  and  not  to  him  at  once,  or  he  forgot  that  the  statute  itself  if  it  did  not  vest  the 
legal  estate  in  the  devisor,  destroyed  the  will,  unless  it  w^  within  the  saving  in  the 
act.  In  no  view  of  the  case  can  it  possibly  be  considered  as  a  decision  establishing  the 
rule  stated  by  Lord  Rosslyn.  Indeed  the  statute  of  uses  was  passed  to  put  an  end  to 
the  testamentary  power  over  land  through  the  medium  of  uses,  but  it  contained  a 
saving  of  wills  made  before  the  statute  by  persons  who  died  before  the  1st  of  May 
153G.  This  saving  of  itself  shows  that  the  legislature  considered  that  the  act  by  ita 
operation  would  defeat  existing  devises  of  uses.  Therefore  the  decision  in  question 
did  not  establish  a  general  rule  of  law,  but  was  founded  on  the  particular  saving  in 
the  statute,  which  took  the  case  out  of  the  general  rule. 

(c)  Rawlins  v.  Biirgis,  2  Ves.  &  Bea.  382.  The  decision  was  appealed  from.  Set 
Ward  V.  Moore,  4  Madd.  368;  Buller  v.  Fletcher,  1  Kee.  809.  GOO;  2  Myl.  &  Cra  . 
432  the  discussion  in  the  last  edition  upon  these  cases  is  now  omitted. 

(rf)  Sec.  23. 


WHERE   A   MORTGAGE  REVOKES   A   WILL.  9 

cutcd  immediately  before  the  death  of  the  testator,  unl^s  a  con- 
trary intention  shall  appear  by  the  will.(e)     Now,  therefore,  iii 
the  case  of  the  partition,  clearly  the  fee  would  pass,  and  it  would 
seem  that  such  a  power  as  that  above  referred  to  would  be  exe- 
cuted by  the  prior  will.     And  now,  after  a  devise  of  an  estate  con- , 
tracted  for,  no  form  of  conveyance  to  the  purchaser  after 
the  will  can  affect  the  devise  ;  for  in  *whatever  mode  con-  [  *8  ] 
veyed  to  him,  the  interest  which  he  has  at  his  death  will 
pass  by  will.(/) 

12.  In  a  case  of  a  different  nature  from  Rawlins  v.  Burgis,  viz. 
upon  the  effect  of  a  mortgage  subsequently  to  the  will  as  a  total 
revocation,  the  mortgage  contained  a  direction  that  upon  payment 
of  the  money,  the  estate  should  be  reconveyed  to  himself,  his  heirs 
and  assigns,  or  to  such  person  or  persons,  and  for  such  estate  and 
estates,  and  to  and  for  such  lawful  trusts,  intents  and  purposes,  as 
he,  his  heirs  and  assigns,  should  by  any  deed  or  instrument  in 
writing  direct,  limit  or  appoint ;  and  it  was  held  that  no  new 
power  was  created,  and  therefore  the  mortgage  was  only  a  revo-^ 
cation  pro  tanto.{g')  The  Court  observed,  that  the  true  question 
was,  whether  by  the  addition  of  the  words  which  follow  the  direc- 
tion to  rcconvcy  to  the  mortgagor  and  his  heirs,  he  did  in  fact 
acquire  any  new  estate  or  power,  or  whether  those  subsequent 
words  did  not  leave  him  with  the  same  estate  and  the  same  powers 
as  he  would  have  had  if  they  had  not  been  used.  It  was  plain, 
that  he  who  has  a  right  to  call  upon  trustees  to  convey  to  himself 
and  his  heirs,  has  a  right,  by  any  instrument  under  his  hand,  to 
direct  the  same  trustees  to  cBnvey  to  the  use  of  any  other  person, 
and  for  any  estates  and  interests,  at  his  pleasure.  The  authority 
to  make  such  direction,  by  any  deed  or  instrument  under  his 
hand,  is  the  necessary  consequonce  of  this  conversion  of  his  legal 
estate  into  an  equitable  interest,  and  the  subsequent  words  are  the 
mere  "  c.rprcssio  eonim  ([am  taciU  itimnty  The  V.  C.  was  of 
opinion,  therefore,  that  the  conveyance,  beiug  by  way  of  security 
for  money,  was  a  revocation  pro  Icuilo  only.  This  opinion  did  not 
interfere  with  the  case  of  Tickner  v.  Tickner,  where  a  new  power 
to  appoint  to  uses  was  acquired.     But  either  case  would  now  fall 

(c)  Sec.  24. 

(/)  H.  Sugd.  Wills,  53. 

{g)  Brain  v.  Brain,  6  Madd.  221;  vide  supra. 


10  SUGDEN   ON   POWERS. 

within  the  provisions  of  the  1  Vict.  c.  20,  to  which  we  have  al- 
ready adverted. 


[  *9  ]  *SECTION  II. 

OF  THE   OPERATION   OF  INSTRUMENTS   EXECUTING    Po'wERS. 


2.  Instrument  operiites  as  a  declaration    16.  Death  of  appointee  will  not  defeat  a 

ofthense.  charge  for  another. 

3.  Will  operates  also  as  a  proper  will.        I  17.  Law  of  lapse  under  1  Vict.  c.  20. 

4.  Revoked  by  a  covenant  to  sell.  '  18.  Will  not  revoked  by  taking  a  transfer 

5.  Or  by  a  cnnveyance,  though  a  bad  ap-  of  the  fund 

poiiitnient.  19.  Contra  by  taking  a  conveyance  of  the 

G.  Although    the    donee    is   a    married  1  estate. 

woman. 
7.  Unless  in  lier  case  the  deed  is  merely 

void. 


23.  Hurst  V.  Winchelsea;  heir  takes  by 
descent  although  appointee. 

24.  Operation  of  3  &'4  Will.  4,  c.  106. 
10    Appointment    by  will  lapses  by  ap-  '  25.  Will  of  personalty  must  be  proved. 

pointee's  death.  27.  Deed  of  appointment  must  be  register- 

11.  Appointment  to  executors  of  a  person       ,        ed  in  register  county. 

living.  >  j  28.  Is  a  conveyance  within  stat.  of  Eliz. 

12.  Lapsed  legacies  fall  into  residue.  ;  29.  Appointee  claims  under  donee  within 

13.  If  payable  out  of  I'eal  estate,  common  [  a  covenant. 

rule  applies.  31.  Lossof  part  of  fund  falls  on  the  residue. 

14.  The  whole  sum  may  lapse  into  the    33.  Where  joint  power  in  husband  and 

residue.  wife  over  her  estate  makes  him  a 

15.  Legacies  to  persons  not  objects  may  purchaser  of  money  borrowed. 

fall  into  residue  duly  given. 


1.  We  are  now  to  consider  the  effect  of  the  execution  of  a 
power. 

I  propose  to  treat,  first,  of  the  operation  of  the  instrument  exe- 
cuting; the  power  ;  secondly,  of  the  manner  in  which  tlic  estates 
created  take  effect  in  regard  to  themselves  ;  and  thirdly,  of  the 
effect  of  the  execution  of  the  power  on  the  estates  in  the  settle- 
ment. 

2.  First,  Avith  regard  to  the  instrimient :  in  whatever  mode  the 

power  is  exercised,  wliethcr  l)y  an  act  hifer  vivos,  a  grant, 
[  *10  ]  bargain  and  sale,  lease  and  release,  covenant  to  *stand 

seised,  feoffment,  or  fine,  or  by  a  will,  the  histrument  in 
every  case  operates  strictly  as  an  appointment  or  declaration  of 


WILL   UNDER  A   POWER,   HOW  REVOKED.  11 

the  use,(/i)  and  therefore,  in  consequence  of  the.  rule  before  no- 
ticed, that  there  cannot  be  a  use  upon  a  use,  the  bargainee,  &c. 
takes  the  legal  estate,  the  appointment  being  made  to  him  ;  and  if 
any  ulterioji"  use  is  declared,  it  operates  merely  as  a  trust  in  equity. 
If  the  power  be  executed  by  way  of  covenant  to  stand  seised,  the 
use  would  vest  in  the  person  intended  to  take  beneficially. 

3.  But  a  will  made  in  execution  of  a  power  has  a  peculiar 

operation ;  it  not  only  operates  as  an  execution  of  the  power, 

but  also  in  most  respects  partakes  of  the  qualities  of  a  pro;?er  will. 

'We  have  s&cn,  that  if  a  power  of  revocation  is  not  reserved  in  a 

deed  executing  the  power,  the  instrument  is  irrevocable  ;  but  this 
does  not  hold  good  as  to  a  ivill,  for  although  in  truth  it  is  not 
strictly  a  will,  l)ut  simply  a  declaration  of  use,  yet  it  so  far  retains 
the  properties  of  a  will  as  to  be  ambulatory  till  the  death  of  the 
testator,  and  consequently  revocable  without  any  express  power 
reserved  for  that  purpose,  (i)  * 

4.  So  such  a  Will  will  be  revoked  by  a  convenant  amounting 
in  equity  to  a  conveyance,  in  the  same  manner  as  a  proper 
will  ;(y)  and  this  rule  is  not,  it  has  been  held,  altered  by  the  23d 
section  of  1  Yict.  c.  26  ;(A;)  and,  generally,  a  will  under  a  power, 
will  be  revoked  by  any  act  amounting  to  a  revocation  in  law  of  a 
proper  will,(/)  or  by  any  of  the  methods  pointed  out  hy  the  Stat- 
ute of  Frauds, (w«)  wliilst  that  act  continues  to  operate  ;  or  by 
the  modes  prescribed  l)y  the  1  Vict.  c.  26,  Avhere  the  case  falls 
within  its  provisions. 

*5.  Therefore  although  a  jjower  ovxsr  real  estate  was  [  *11  ] 
confined  to  a  will,  and  was  .exercised  by  a  will,  yet  a 
subsequent  conveyance  by  deed  to  a  purchaser,  although  a  void 
execution  of  the  power,  would  have  operated  as  a  revocation  of 
the  will,(w)  imder  the  old  law.  In  general,  a  void  act  which 
loaves  the  interest  in  the  testator  at  the  time  of  his  death,  will 

{h)  See  Attorney-geueral  v.  Bradley,  1  Eden,  482. 

(t)  Hatcher  v.  Curtis,  2  Freem.  61  ;  and  see  1  Ves.  139  ;  2  Ves.  77.  612;  Lisle  v. 
Lisle,  1  Bro.  C.  C.  533,  Lawrence  v.  Wallis,  2  Bro.  C.  C.  319. 

(j)"  Cotter  V.  Layer,  2  P.  Wms.  662.     See  1  Treat.  Purch.  188,  184. 

(fc)  Farrer  v.  Lord  Winterton,  5  Beav.  1 ;  Moor  v.  Raisbeck,  12  Sim.  123. 

(/)  Reid  V.  Shergold,  10  Ves.  jun.  370;  Shove  v.  Pincke,  5  Term  Rep.  124.  See 
Ex-parte  Lord  Ilchester,  7  Ves.  jun.  348;  Richardson  v.  Barry,  3  Hagg.  249. 

(771)  2  Ves.  77.  .  • 

{n)  Reid  v.  Shergold,  ubi  supra. 


12  SUGDEN   ON   POWERS. 

not  defeat  the  operation   of  the  jn-ior  will  under  the  1  Vict, 
c.  20. 

G.  A  married  woman's  will  under  a  jjower  will  be  revoked  like 
other  wills  by  an  invalid  appointment  under  the  power  by  act 
inter  wro5, -if  equity  will  aid  the  defective  execution. (o)(l) 

7.  But  the  will  of  a  married  woman  made  in  the  execution  of 
a  power  which  could  be  exercised  by  will  only,  will  not  be  re- 
voked by  a  deed  executed  during  the  coverture,  and  after  her 
will  manifesting  a  diflerent  intention.  For 'such  a  deed  is 
altogether  inoperative  at  law  and  in  equity  as  an  appointment, 
and  is  therefore  not  permitted  to  revoke  the  Iprior  will.  The 
distinction  is  a  refined  one  between  this  case  and  some  others  in 
the  books,  but  it  has  the  merit  of  giving  effect  to  the  only  appoint- 
ment which  can  operate. 

8.  The  point  was  decided  in  Eilbeck  v.  AVood,(;?)  where  by 
a  deed,  in  1790,  an  estate  was  settled  to  such  uses  as  A.,  whether 
sole  or  married,  should  appoint  by  deed  or  writing,  <fec.,  and  in 
default  of  such  appointment,  upon  trust  for  her  separate  use,  and 
after  her  decease,  to  such  uses  as  she  should  appoint  l>y  will,  and 
in  default  of  such  appointment,  to  the  use  of  her  children  in  tail, 
with  remainders  over.  By  a  marriage  settlement  in  1800,  A. 
in  exercise  of  her  first  power,  appointed  the  estate  aftor  the 
marriage  to  trustees  during  the  Joint  lives  of  herself  and  her  in- 
tended husband  for  her  separate  use,  and  if  she  should  die  in  his 
lifetime,  then  to  such  uses  as  slie  should  appoint  by  vnlf,  and  in 

default  of  such  appointment,  to  the  uses  by  the  deed  of 
[  *12  ]  1799  *limited  after  her  decease ;  but  if  she  should  sur- 
vive him,  then  to  such  uses  as  she  should  appoint  by  deed 
or  writing,  <^^c.,  and  in  default  of  such  appointment,  to  the  uses 
limited  by  the  deed  of  1799.  After  the  marriage,  by  her  will, 
under  her  power,  in  the  settlement  of  1800,  she  gave  the  estate 
to  the  hus))and  in  fee.  By  a  deed  executed  by  her  and  her  hus- 
band in  1811  which  recited  the  settlement  of  1799,  but  not  that 
of  1800,  A.,  by  virtue  of  the  power  in  the  former  settlement,  and 
of  all  other  powers  enabling  her  in  that  behalf,  appointed  the 

(o)  Cotton  V.  Layer,  2  P.  Wms.  623. 
{p)  1  Russ.  564,  prior  to  Vict.  c.  26. 


(1)  See  note  post  p.  128. 


WILL    UNDER   A    POWER    HOW    REVOKED.  13 

estate  to  her  liiij^ltand  for  life,  tlien  to  herself  for  life,  and  then  to 
the  children  of  the  marriage  in  strict  settlement,  with  remainder 
to  the  huslmnd  in  fee.  Tiie  deed  was  attested  by  two  witnesses, 
as  required  by  the  settlement  of  1799.  A.  died  in  her  husband's 
life-time.  The  court  of  King's  Bench,  upon  a  case  •  directed  by 
the  Court  of  Chancery,  certified  that  the  deed  of  api)oiniment 
did  not  rcA'oke  the  will,  and  that  certificate  was  confirmed  in 
equity. 

9.  In  a  case  where  it  was  doubted  whether  an  appointment 
giving  a  power  to  appoint  by  Avill  to  a  married  daughter  was 
valid,  a  settlement  was  made  by  herself  and  her  husband  and  a 
party  entitled  to  a  share  if  the  power  was  invalid,  which  settle- 
ment was  held  to  be  confined  by  construction  to  the  interests  of 
the  parties  if  the  power  was  invalid,  and  the  daughter  having 
after  the  settlement  made  her  Avill  and  exercised  the  power,  and 
subsequently  a{)poiuted  a  new  trustee  under  the  settlement,  the 
latter  deed  was  held  to  be  no  revocation  of  the  will  which  was 
operative,  as  the  power  was  held  to  be  well  created  ;(1)  and  it 
was  decreed  that  the  husband,  as  appointee  under  his  wife's  will, 
was  not  bound  to  make  good  the  settlement.  (^) 

10.  Again,  the  a})})ointmeiit  will  lapse  by  the  deatli  of  the- 
donee  in  the  testator's  life-time  :('/•)  but  although  the  appointee 
surN'ive  the  testator,  he  will  only  take  from   the  time  of 

the  'testator's  death  ;(a-)  and  tlicrefore  wlicre  the  donee  [  *13  ] 
of  a  ]»owcr  by  Avill  executed  it  l)y  his  will,  and  then  be- 
came bankrupt,  and  ol)tained  his  certificate  and  died,  it  was  held 
tliat   the   certificate   barred  the  right  of  the  assignees,  as  the 
appointment  operated  only  from  the  testator's  death. (^) 

11.  Of  course,  executoi*s  cannot  take  derivatively  from  the 
appointee,  yet  an  a])])ointment  may  be  made  to  executors  or  ad- 
ministrators, who  may  be  used  in  a  will  as  distinct  from  the  tes- 

{q)  Phipson  v.  Turner,  9  Sim.  227.  This  case  furnishes  do  rule  ;  it  was  prior  to 
1  Vict.  c.  26. 

(r)  Oiie  V.  Heath,  1  Ves.  135;  Vanderzee  v.  Aclom,  4  Ves.  juu.  771;  Burgess  v. 
Mawbey,  10  Ves.  jun.  Sl'J;  Earl  of  Salisbury  v.  Lambe,  Amb.  385. 

(s)  Duke  of  Marlborough  V.  Lord  Godolphin,  2  Ves.  61,  S.  C.  MS.;  Southby  v. 
Stonehouse,  2  Ves.  016;  Vanderzee  v.  Aclom,  4  Ves.  jun.  771. 

(i)  Jenny  v.  Andrews,  6  Madd.  264. 


(1)  Newburyport  Bank  y.  Stone,  13  Pick.  R.  420. 

Vol.  II.  2 


14  SUGDEN   ON   POVVT-^RS. 

tator,  and  as  persons  desitrnntctl  to  take  in  tlie  event  of  the  death 
of  the  appointee,  in  the  testator's  lire-tinie.(//)(I) 

12.  So  lapsed  legacies  of  personalty  will  fall  into  the  resi- 
due(a:)  where  the  residue  is  duly  given  in  execution  of  the 
power. 

13.  And  wluMO  tlicre  is  a  laj)se  of  a  legacy  to  be  paid  out  of 
money  to  arise  from  the  sale  of  an  estate  directed  to  be  sold  by 
will  under  a  general  power,  the  common  rules  apj)ly,  and  it  will 
either,  in  case  of  a  lapse,  fall  into  the  residue  or  go  to  the  heir  at 
law,  just  as  if  the  testator  had  been  seised  in  fee,  of  the  estate  ; 
but  of  course  it  could  not  go  to  the  heir-at-law,  unless  the  testator 
was  seised  of  the  fee  subject  to  the  power.  (//) 

14.  And  even  where  the  whole  sum  is  appointed  to  a  legatee 
under  a  limited  power,  yet  it  will,  in  case  of  a  lapse  by  death, 
fall  into  a  general  "  residue  of  what  the  testator  has  power  to 

dispose  of,"  and  not  go,  as  in  default  of  appointment, 
[    *14    ]  *to  the  persons  entitled  under  the  instrument  creating 

the  power  ;  and  although  the  residue  is  given  subject  to 
the  payment  of  legacies  to  persons  not  objects  of  the  power,  yet 
if  there  are  other  funds  upon  which  the  gift  of  the  residue  will 
operate,  it  will  be  considered  as  the  gift  of  two  funds,  upon  condi- 
tion to  pay  out  of  one  over  which  he  had  power  to  make  such 
disposition.  (2r) 

15.  So  where  legacies  are  given  by  a  will  under  a  limited 
power  to  persons  not  objects  of  it,  and  the  residue  is  given  to 
proper  objects,  although  expressly  "  after  payment  of  the  above 
legacies,"  the  jiartieular  legacies,  by  analogy  to  the  rule  as  to 
lapsed  legacies,  will  fall  into  the  residue,  and  no  i)art  of  the  fund 
will  be  considered  as  unappointcd.(a) 

16.  Nor,  in  ecpiity,  will  the  death  of  the  appointee  defeat  a 

(«)  Burnet  v.  llelgrave,  1  Eq.  Ca.  Ahr.  29G,  pi.  2.     See  2  Ves.  80. 

(x)  Oke  v.  Heath,  ubi  sup.;  Falkner  v.  Butler,  Ambl.  514;  Easum  v.  Appleford, 
10  Sim.  274;  5  Myl.  &  Cra.  56. 

(t/)  Hutcbeson  v.  Hammond,  3  Bro.  C.  C.  128.  Sec  Kennett  v.  Abbott,  4  Vcs.  jun. 
802. 

(r)  Okev.  Heath,  1  Ves.  135. 

(0)  Falkner  v.  Butler,  Ambl.  514. 

(1)  This  is  the  principle  established  by  this  case;  but  -whether  it  was  rightly  ap- 
plied to  the  facts  in  that  case  is  another  question.  See  Oke  v.  Heath,  Duke  of  Marl- 
borough V.  Lord  Godolphin,  and  Vanderzee  v.  Aclom,  cited  sup. 


WHERE  WILL  EEVOKED   BY   TRANSFER   OF    FUND.  15 

charge  on  the  interest  appointed  to  him  in  favour  of  a  person  who 
survives  the  testator.  (6) 

17.  The  general  law  as  to  lapse  has  been  greatly  altered  by 
the  1  Vict.  c.  26,  the  provisions  in  which  the  Courts  will  have  to 
apply  to  wills  under  powers,  as  far  as  they  fall  within  them. 
The  provisions  generally  are,  that  a  devise  even  of  real  estate 
which  lapses  will  be  included  in  the  residuary  devise  in  the 
will  ;(6-)  and  a  devise  of  an  estate  tail  docs  not  lapse  if  there  is 
issue  living  at  the  testator's  death,  for  tlicy  are  to  take  ;(f/)  and 
upon  gifts  by  will  to  a  child  or  other  issue  of  the  testator, 
the  gift  will  not  lapse  if  there  is  at  the  testator's  death  any  issue 
of  the  devisee  or  legatee,  unless  a  contrary  intent  appear  by  the 
will.(e)  Where  personal  estate  was  settled  on  the  children  as 
the  mother  should  appoint  l)y  deed  or  will,  and  tlie  children  were 
to  take  equally,  in  default  of  appointment,  a  testamentary  ap- 
pointment to  a  child  who  died  in  the  mother's  lifetime  was  held 
not  to  be  within  the  statute. (/) 

*18.  In  a  case  where  personal  estate  was  before  marri-  [  *15  ] 
age  vested  in  trustees  for  the  wife's  separate  use  for  life, 
then  to  the  issue  of  the  marriage,  then  to  such  persons  as  the 
wife  should  by  will  appoint,  and  in  defaiilt  thereof^  to  her  abso- 
lutely and  power  was  given  to  her  to  make  a  will,  notwithstand- 
ing her  coverture  ;  by  her  will,  made  during  the  coverture,  she 
disposed  of  the  fund  under  the  power.  Her  husband  afterwards 
died  without  issue,  and  she  then  took  a  transfer  of  the  stock  into 
her  own  name,  and  Lord  Kenyon  held  that  the  will  was  not 
revoked,  as  no  alteration  of  intention  was  shown.  He  considered 
that  tlie  intervention  of  tlie  trustees  was  not  necessary  after  the 
husband's  death.  It  had  been  decided  that  where  a  person  having 
an  equitable  interest  in  real  property  devises  it,  and  afterwards 
gets  tlic  legal  estate,  this  will  be  "no  revocation  ;  so  here  there 
was  no  new  beneficial  interest  acquired.  If,  therefore,  this  were 
to  be  construed  with  equal  strictness  as  the  rules  respecting  real 
estate,  it  would  be  no  revocation,  much  less  so  in  case  of  person- 

(6)  Oke  V.  Heath,  ubi  sup.     See  Taylor  v.  George,  2  Ves.  &  Bea.  378. 

(c)  Sec.  25. 

(d)  Sec.  32. 

(c)  Sec.  33.    See  IT.  Sugl.  Wills.  108—118. 
(/)  Griffiths  V.  Gale,  12  Sim.  355. 


16  SUGDEN   ON   POWERS. 

alty.(i^^  The  will  was  eiijiablo  of  support,  as  ono  made  by  the 
woman  of  her  interest,  with  her  husband's  assent,  given  by  the 
settlement. 

19.  But  imnuMliatoly  afterwards  Lord  Thurlow  dceidcd  dilTer- 
eutly  as  rcgaidod  the  real  estate  of  the  same  lady.(/t)  By  the 
settlement  the  real  estate  was  conveyed  to  trustees,  in  trust  to 
convey  it  as  she,  wliether  sole  or  covert,  should  l)y  deed  or  will 
appoint, (I)  By  her  Avill  she  gave  the  property  under  her  power, 
in  case  she  had  no  children,  to  her  relations.     Her  husband,'^as 

we  have  already  seen,  died  without  issue,  and  after  his 
[  *1G  ]  death,  she  by  a  deed,  in  exercise  *of  her  power,  direct- 
ed the  trustees  to  convey,  and  they  conveyed  the  estate 
to  herself  in  fee  ;  and  Lord  Thurlow  said  the  question  was,  which 
of  the  acts  was  an  execution  of  the  power.  There  was  no  doubt 
it  was  executed  by  the  conveyance  to  her  own  use. 

20.  Li  the  recent  case  of  Clough  v.  Clough,(i)  personal  estate 
was  settled  as  the  wife  should  ap])oint  Ijy  deed  or  writing,  and  in 
default  of  such  appointment,  if  the  wife  survived  the  husband 
(which  happened,)  as  she,  whether  covert  or  sole,  should  l)y  will 
appoint,  and  in  default  thereof,  to  her  next  of  kin.  She  made 
her  will  in  her  husband's  lifetime,  and  after  his  death  took  an  as- 
signment of  the  funds  to  herself,  and  it  was  held  to  be  no  revo- 
cation. The  Master  of  the  Rolls  said  that  if,  after  a  will  made 
of  real  estate,  the  quality  of  that  estate  be  changed,  the  will  is 
revoked ;  because  by  the  statute  of  wills  no  real  estate  can  l)e  de- 
vised of  which  the  i)arty  is  not  seised  at  the  time.  The  principle 
has  no  application  to  personal  estate,  which  will  pass  by  a  will  ex- 
pressed in  general  terms,  although  subsecpiently  acquired.  The 
testatrix  at  the  time  of  the  will  had  the  whole  beneficial  interest 
in  her  personal  estate, (11)  and  the  vesting  of  the  legal  interest  in 
her  by  the  assignment  of  the  trustee  would  in  no  manner  aflcct  the 

ig)  Dingwell  v.  Askew,  1  Cox,  427. 

{h)  Laurence  v.  Wallis,  2  Bro.  C.  C.  319;  consider  now  the  operation  of  the  1  Vict, 
c.  26. 

(t)  3  Myl.  &  Kee.  296. 

(I)  This  is  the  statement  in  Brown:  The  Register's  book  (1787,  B,  fo.  23)  does 
not  state  the  uses  or  trusts  of  the  settlement:  the  estate  was  probably  settled  on  the 
issue,  and  in  default  of  issue  and  of  appointment,  on  herself  in  fee. 

(II)  This  is  hardly  correct.  She  had  the  power  to  acquire  the  whole  beneficial 
interest,  but  the  whole  beneficial  interest  was  not  at  any  period  vested  in  her  under 
the  settlement. 


WHERE   WILL   REVOKED   BY   TRANSFER   OF   FUND.  17 

bequests  of  the  will.     The  mere  accession  of  the  legal  to  the  bene- 
ficial interest  is  not  a  revocation  even  of  real  estate. 

21 .  How  far  a  woman's  Will  will  be  revokfed  by  her  subsequent 
marriage  has  already  been  incidentally  considered  in  another 
place. 

22.  The  same  latitude  is  allowed  in  the  terms  of  the  devise  as 
in  the  case  of  a  proper  will ;  but  this  doctrine  has  already  been 
discussed. (y  ) 

*23.  The  analogy  has  been  carried  so  far,  that  wliere  [  *17  ] 
under  a  settlement  a  married  woman  had  a  general 
power  of  appointment,  and  a  limitation  in  fee  in  default  of  ap- 
poinlment^Q)  and  by  her  will  appointed  the  fee  to  her  heir- 
at-law,  it  was  held  that  he  took  by  descent  and  not  by  pur- 
chase as  an  appointee,  or  in  other  words,  that  the  appointment  did 
not  operate. (A^)  Lord  Mansfield  said,  that  the  whole  point  in  the 
case  was,  whether  in  legal  construction  the  heir  is  to  be  supposed 
to  have  taken  an  estate  l)y  purchase,  vested  in  him  in  the  lifetime 
of  his  mother,  by  relation  to  the  deed  of  release,  or  nothing  until 
her  death ;  because  if  nothing  passed  until  her  death,  then  the 
appointment  gave  him  only  simid  et  semel  what  the  law  gave  him. 
If  the  ivill,  with  all  its  qualities,  must  be  considered  as  inserted 
in  the  deed,  then  this  amongst  others  must  be  inserted,  viz.  that 
she  could  not  devise  to  her  heir.  The  only  question  was,  did  any- 
thing vest  in  the  son  before  his  mother's  death  ?  If  not,  let  it  be 
by  will,  power  or  otherwise,  it  cannot  operate.  The  decree  of 
Lord  Keeper  Henley,  in  conformity  with  the  judginent  of  the 
King's  Bench,  was  appealed  from  to  the  House  of  Lords,  but  the 
appeal  was  compromised. (/)  But  it  was  not  doubted  that  the 
appointee  would  have  taken  by  purchase  if  the  fee  had  not  been 
vested  in  the  testatrix. 

24.  The  reasoning  upon  the  point  decided  is  not  very  satisfac- 
tory, and  the  difficulty  is  not  lessened  by  the  law,  in  analogy  to 
which  the  case  was  decided,  having  since  been  altered  by  the 

(j  )  Vide  supra,  ch.  6,  sect.  2;  1  Vict.  c.  26. 

(fc)  Ilurst  V.  the  Earl  of  Wiuchelsea,  1  Blackst.  187;  2  Lord  Keny.  444.  See 
Langley  v.  Sneyd,  3  Brod.  &  Bing.  243;  1  Sim.  &.  Stu.  45,  and  7  Moore,  165. 

(Z)  2  Burr.  882. 

(I)  In  Blackstone's  Report  this  limitation  is  omitted,  and  the  case  was  stated 
from  that  Report  in  the  former  editions  of  this  work.  The  case  is  correctly  reported 
by  Lord  Kenyon. 

2* 


IS  BUGDEN   ON   POWERS. 

Ijegislaturc,  witliout  any  provision  having  been  made  for  tliis  ca«se. 
The  3  (fe  4  Will.  4,  c.  lOO,  s.  8,  (and  sec  s.  12,)  enacts  that  when 

any  estate  shall  have  I>een  devised  by  any  testator,  who 
[  *18  ]  shall  die  al'tcr  tiic  31st  "December  1833,  to  the  heir,  or 

to  the  person  who  shall  be  the  heir  of  such  testator,  such 
heir  shall  be  considered  to  have  acquired  the  land  as  a  devisee, 
and  not  by  descent ;  and  when  any  land  shall  have  been  limited 
by  anij  assurance  to  the  i)erson,  or  to  the  heirs  of  the  person  who 
shall  there ht/  have  conveyed  the  same  land,  such  person  shall  be 
considered  to  have  acquired  the  same  as  a  purchaser,  by  virtue  of 
such  assurance,  and  sliall  not  be  considered  to  ]»e  entitled  thereto 
as  his  former  estate,  or  part  thereof;  and  in  this  last'  provision 
the  word  "assurance"  means  any  deed  or  instrument  other  than 
a  will.(m)  But  although  the  appointment  by  will  is  not  strictly 
a  devise,  yet  for  many  purposes  it  is  so  considered,  and  the  case 
of  Hurst  V.  Winchelsea  itself,  as  far  as  it  is  an  authority,  estab- 
lishes this  doctrine  to  its  utmost  limits ;  and  therefore  it  seems 
probable  that  where  the  testator  has  both  a  power  and  the  fee, 
the  case  would  now  be  deemed  to  fall  within  the  act,  and  that 
therefore  the  appointee  would  be  held  to  take  by  purchase,  with- 
out disturV)iiig  the  authority  of  Hurst  and  Winchelsea. 

25.  Where  the  will  relates  to  personalty, (w)  it  must  be  proved 
in  the  Sjiiritual  Court.  This  has  l)een  determined  even  in  regard 
to  an  ap})ointmcnt  by  the  will  of  a /ewe  covert^  who  cannot  in  the 
notion  of  law  make  a  will,(o)  although  a  different  opinion  appears 
at  one  time  to  have  prevailed. (y?)  The  Courts  of  Equity  will 
not,  however,  at  this  day,  read  the  appointment  by  will  until  it  is 
duly  proved  as  a  proper  will  in  the  Spiritual  Court,  nor  will  the 
probate  preclude  the  necessity  of  proving  the  instrument  as  an 
appointment,  upon  any  claim  under  it  in  a  Court  of  E(piity,(r7) 

for  the  Ecclesiastical  Court  can  only  decide  that  the  act 
[  *19  ]  is  testamentary,  and  has  no  jurisdiction  *to  determine 

(m)  Sect.  1. 

(n)  See  Hume  v.  Rundell,  6  Madd.  331. 

(o)  Ross  V.  Ewer,  3  Atk.  15G. 

(p)  Daniel  v.  Goodwin,  Exch.  T.  T.  8  &  9  Geo.  2,  MS.  App.  No.  20;  and  in  Shar- 
delow  V.  Naylor,  1  Salk.  313. 

(5)  Rich  T.  CockcU,  9  Vcs.  jun.  369.  See  Watt  v.  Watt,  3  Ve3.  jun.  244;  Cothay  7. 
Sydenham,  2  Bro.  C.  C.  391. 


DEED   OF    APPOINTMENT,   ETC.  19 

whether  an  instrument  is  a  good  execution  of  a  power  ;(r)  but 
it  is  conclusive  upon  the  question  whether  the  instrument  is  to  be 
taken  as  a  valid  testamentary  instrument. (5) 

2G.  We  shall  presently  see  that  estates  created  by  the  execution 
of  a  power  take  effect  as  if  created  by  the  original  deed ;  and,  in 
general,  a  deed  executing  a  power  cannot  be  considered  as  a  new 
alienation,  or  independent  conveyance  ;(^)  Ijut  still  there  are  cases 
in  which  a  deed  executing  a  power  is  for  many  purposes  consider- 
ed as  a  substantive  independent  instrument. 

27.  Thus  such  a  deed  affecting  an  estate  in  a  register  county 
must  be  registered ;  it  is  within  the  mischief  intended  to  be  guard- 
ed against  by  the  acts,  as  a  purchaser  could  not  otherwise  discover 
whether  the  power  has  been  exercised. (w) 

28.  So  a  deed  executing  a  power  over  real  estate  has  been 
deemed  a  conveyance  within  the  statute  of  Elizabeth,  so  as  to  be 
fraudulent,  because  it  was  a  conveyance. (re)  So  on  an  issue  to 
try  whether  the  plaintiff  was  entitled  l)y  two  writings,  or  any 
other,  purporting  a  will  of  J.  S.,  and  the  evidence  was  of  a  feoff- 
ment to  the  use  of  such  person  as  J.  S.  should  appoint  by  his  will ; 
in  which  case  it  was  contended  that  the  devisees  were  in  by  the 
feoffment,  and  not  by  the  will ;  the  Court  held  that  this  was  only 
fictione  juris,  for  that  they  were  not  in  vnthout  the  will,  and  there- 
fore that  was  the  principal  part  of  the  title,  and  such  proof  was 
good  enough,  and  pursuant  to  the  issue,  and  a  verdict  was  accord- 
ingly given  for  the  plaintiff.  (//) 

29.  So,  although  the  estate  did  not  originally  belong 

to  *thc  donee  of  the  power,  and  the  estate  created  by  the  [  *20  ] 
appointment  is  considered  as  limited  by  the  deed  creating 
the  power,  yet  a  person  deriving  title  under  an  appointment  is 
considered  as  claiming  under  the  donee,  within  the  meaning  of  a 
covenant  l>y  him  for  quiet  enjoyment  against  any  person  claiming 
under  him.(2r) 

(r)  See3  Ves.  Jun.  246;  Exparte  Tucker,  1  Mann.  &  Grang.  519;  Tucker  v.  In- 
man,  1  Car.  &  Mars.  82;  4  Man.  &  Gran.  1049. 

(j)  Douglas  V.  Cooper,  3  Myl.  &  Kce.  378. 

(t)  See  Coke's  argument  in  Lady  Gresham's  case,  Mo.  261. 
'  (u)  Scrafton  v.  Quincey,  2  Ves.  413. 

(i)  See  2  Ves.  65. 

(y)  Bartlett  v.  Ramsdcn,  1  Keb.  570. 

(z)  Hard  v.  Fletcher,  Dougl.  4. 


20  SUGDEN    ON   POWERS. 

30.  Where  there  is  a  power  to  ai)j)iiiiit  part  of  a  settled  fund, 
the  (!xecutiou  of  the  power  takes  the  part  appointed  entirely  out 
of  the  settlement ;  altliouuh,  therefore,  the  beneficial  interest  in  it 
is  not  in  terms  inimediately  disposed  of,  yet  there  can  be  no  result- 
ing trust  fur  tlie  benefit  of  any  person  under  the  deed  creating  the 
power;  for  where  the  i)rincij)al  of  the  fund  is  appointed  it  must 
be  considered  as  if  it  had  never  been  comprised  in  the  trust, 
because  it  is  a1)solutely  tak(3n  out  of  it  by  the  execution  of  the 
power.  Tlierefore  where  a  wife — under  a  settlement  of  her  per- 
sonal property,  which  was  settled  on  herself  and  her  husband,  and 
the  survivor,  and  was  afterwards  to  be  laid  out  in  land  to  be.  set-, 
tied  on  the  heirs  of  her  body  by  him,  remainder  to  tlic  survivor 
in  fee — had  a  general  power  to  appoint  1,500/.,  part  of  the  money, 
and  she  did  appoint  it  to  a  trustee  to  pay  to  her  nieces  1,500/.  and 
500/.  respectively  when  twenty-one,  or  at  marriage ;  it  was  held, 
that  the  sum  was  wholly  taken  out  of  the  settlement,  and  that 
there  was  no  resulting  trust,  and  the  trustee  having  the  whole 
capital  money  in  his  hand  for  the  benefit  of  the  cestuis  que  trusty 
the  capital  would  draw  the  interest  with  it.(«) 

31.  If  the  fund  sustain  a  loss,  the  sum  subjected  to  the  power 
may  be  appointed,  and  the  loss  must  be  borne  wholly  by  the  per- 
sons entitled  to  the  residue. (6) 

32.  Where  husband  and  wife  raise  money  out  of  the  wife's 
estate,  with  the  reversion  to  the  one  or  to  the  other,  equity  inquires 

into  the  uses,  considers  them  as  two  persons,  and  if 
[  *21  ]  *the  expression    may   be  used,  dissolves  the  marriage 

quoad  the  transaction.  Though  the  husband  covenants 
to  pay  the  money  and  gives  a  bond,  yet  the  application  determines 
who  is  the  principal,  who  is  tlic  surety,  (c) 

33.  In  Lewis  v.  Nangle,(t/)  however,  where  a  woman's  real 
estate  was  settled  on  her  marriage  on  her  husband  for  life,  sans 
waste,  remainder  in  like  manner  to  the  wife,  and  then  to  the 
issue  of  the  marriage,  with  remainder  to  herself  in  fee,  with  a 
joint  power  of  revocation  and  new  appointment  in  herself  and 
her  husband :  they  exercised  the  power  and  revoked  the  uses, 
and  mortgaged  the  estate  for  a  sum  of  money,  part  of  which  was 

(ff)  Mansell  v.  Price,  Rolls,  MS.  App.  No.  21. 

(6)  Oke  V.  Heath,  1  Ves.  135.     See  Shelley  v.  Earsfield,  1  Rep.  Cha.  110. 

(c)  Per  Lord  Camden,  SSwanst.  217. 

(d)  Ambl.  150;  1  Cox,  240;  3  Swanst.  212  n. 


OPERATION   OP   ESTATES   UNDER   POWERS.  21 

to  pay  her  debts  whilst  sole,  and  the  rest  to  supply  his  occasions, 
and  he  covenanted  to  pay  the  money,  and  they  resettled  the 
estate  as  before,  but  not  making  the  estate  for  life,  sans  waste, 
and  limiting  the  remainder  in  fee  to  the  wife's  sister,  who  was  the 
mortgagee  :  Lord  Hardwicke  considered  that  as  a  new  settlement 
was  made,  and  part  of  the  money  was  to  pay  the  wife's  debts,  the 
husband  was  bound  to  keep  down  the  interest  only,  and  not  to 
pay  oflf  any  ]jart  of  the  principal.  Lord  Camden  considered  him 
as  a  purchaser  of  the  very  loan  from  the  joint  power  of  revo- 
cation, (e) 

34.  And  where  a  hus1)and  is  liable  to  pay  off  money  raised  on 
his  wife's  estate  for  his  benefit  by  the  execution  of  a  power,  her 
devise  under  lier  power,  of  the  estates  to  him  for  life,  and  after 
his  death  over,  "  subject  to  such  incumbrances  as  the  same  are 
now  sul)ject  to,"  will  not  be  deemed  an  exclusive  charge  upon 
the  estates,  so  as  to  exonerate  him  from  his  previous  liability. (/) 


*SECTION  III.  [  *22  ] 

OF   THE   GENERAL   OPERATION    OF   ESTATES   CREATED   UNDER   POWERS. 


1.  Take  effect  as  if  created  by  the  deed  I  9.  Appointee  not  liable  in  some  cases  to 
raising  the  powei".  (oveuant  running  with  the  land. 


8.  But  only  from  the  time  the  power  is 
executed. 

4.  Husband  and  wife  may  appoint  to  each 

other. 

5.  Rule  in  Shelley's  case  operates  after  an 

appointment. 
8.  Power  not  a  remainder. 


14.  Power  to  sell:  assets  equitable. 


10.  Interest  appointed  is  subject  to  ap- 
pointee's debts. 

11.  Appointee  of  a  fund  under  a  general 
power,  takes  subject  to  appointor's 
debts. 

12.  But  a  purchaser  from  a  voluntary  ap- 
pointee not  liable. 


1.  The  estates  created  l)y  the  execution  of  a  power  take  effect 
precisely  in  the  same  manner  (with  the  exception  wliicli  will 
shortly  lie  noticed)  as  if  created  by  the  deed  which  raised  the 

(e)  3  Swanst.  217,  218,  n. 

(/)  Earl  of  Kinnoul  v.  Money,  3  Swanst.  202:  there  were  specialties  in  the  case. 


22  SUGDEN    ON    POWERS. 

power.  Tliiis,  suppose  a  ircncral  power  of  appointment  to  be 
given  to  a  man  by  deed,  and  he  by  virtue  of  his  power  to  limit 
the  estate  to  A.  for  lif(\  with  remainder  to  liis  chiUlren  in  strict 
settlement,  these  limitations  will  take  effect  as  estates  limited  by 
the  orijiinnl  tlecd,  and  in  exactly  tlic  same  way  as  they  would 
have  done  had  they  been  limited  in  that  deed  l)y  the  grantor  of 
the  power, (ij-) 

2.  By  the  8  <fe  4  Will.  4,  c.  74,  for  the  abolition  of  fines  and 
recoveries,  it  is  enacted  that  every  assurance  already  made  or 
thereafter  to  be  made,  whether  by  deed,  will,  private  Act  of 
Parliament,  or  otherwise,  by  which  lauds  are  or  shall  be  entailed 

or  agreed  or  directed  to  be  entailed,  shall  be  deemed  a 
[  *23  ]  settlement;  and  every  appointment  made  in  *exercise 

of  any  power  contained  in  any  settlement  shall  be  con- 
sidered as  jiart  of  such  settlement,  and  the  estate  created  by 
such  appointment  shall  be  considered  as  having  been  created  by 
such  settlement.  (A) 

3.  It  has  been  contended,  that  tlic  acts  done  in  consequence 
and  by  virtue  of  an  authority,  and  pursuant  thereto,  are  the  acts 
of  the  old  ])roprietor,  and  of  that  day  wherein  he  in  virtue  of 
his  oiimership  deleg-ated  that  authority.  But  this  Lord  Hard- 
wicke  over-ruled.  He  admitted  the  principle,  that  where  a  per- 
son takes  by  execution  of  a  power,  whether  of  realty  or  person- 
alty, it  is  taken  under  the  authority  of  that  power,  but  not  from 
the  time  of  the  creation  of  that  power.  The  meaning  that  the 
persons  must  take  under  the  power,  or  as  if  their  names  had  been 
inserted  in  the  power,  is  that  they  shall  take  in  the  same  manner 
as  if  the  power  and  instrument  executing  the  power  had  been 
incorporated  in  one  instrument  ;  then  they  shall  take  as  if  all  that 
was  in  the  instrument  executing  had  Ijccn  expressed  in  that  giving 
the  power.  So  it  is  in  ajipointmcnts  of  uses.  If  a  leolVnient  is 
executed  to  such  uses  as  he  shall  api)oint  ])y  will,  when  the  will  is 
made,  it  is  clear  that  tlic  ai)))ointec,  cestui  que  use,  is  in  by  the 
feoffment,  but  has  nothing  from  tlie  time  of  the  execution  of  the 
feoffment  so  as  to  vest  the  estate  in  him.  The  estate  will  vest  in 
him  according  to  the  act  done  and  apj)ointment  of  the  use  from 
the  time  of  the  testator's  death.  This,  therefore,  is  not  a  relation 
so  as  to  make  things  vest  from  the  time  of  the  power,  but  accord- 

{g)  See  Middloton  v.  Crofts,  2  Atk.  GGl, 
(/i)  Sect,  1. 


RULE  IN  Shelley's  case.  23 

ing  to  the  time  of  that  act  executing  that  power ;  not  like  the 
referring  back  in  case  of  assignment  in  commission  of  bankruptcy 
that  is,  by  force  of  the  statute,  and  to  avoid  mesne  wrongful 
acts.(0 

4.  This  doctrine,  that  the  appointee  takes  under  the  original 
deed,  is  followed  in  all  its  consequences.  *Therefore, 
although  a  husband  cannot  at  common  law  convey  di-  [  *24  ] 
rectly  to  his  wife,  yet  he  may  make  an  immediate  ap- 
pointment to  her  •,{k')  because  her  estate  arises  out  of  the  original 
seisin  ;  and  for  the-same  reason  a  wife  may  appoint  immediately 
to  her  husband  ;  the  principle  is  something  similar  to  that  which 
prevails  in  copyliolds,  where  a  surrender  l)y  the  husband  to  the 
wife,  or  by  the  wife  to  her  husband,  is  good.(/) 

6.  8o  although  a  -limitation  to  A.  for  life  by  one  instrument, 
and  a  limitation  to  his  heirs,  or  heirs  of  his  body,  by  another, 
cannot  unite  according  to  the  rule  in  Shelley's  case,  yet  a  limita- 
tion to  A.  for  life  by  deed,  and  a  limitation  afterwards  in  his  life- 
time to  his  heirs,  or  the  heirs  of  his  body,  under  an  execution  of 
a  power  of  appointment  contained  in  the  deed  creating  the  life- 
estate,  will  coalesce  so  as  to  give  the  inheritance  to  A.  Perhaps 
the  nearest  case  to  this  in  the  old  books  is  Pybus  and  Mitford, 
where  a  limitation  to  the  lieirs  of  the  body  of  A.  was  held  to 
unite  with  an  estate  for  life  which  resulted  to  him  l)y  the  same 
deed.  Mr.  Fearne,  in  his  investigation  of  this  point,  considers  it 
clear  that  the  limitations  will  unite  :  he  treats  the  deed  execut- 
ing the  power  as  a  branch  of  tlie  original  settlement,  merely 
directing  the  operation  of  it,  qvoad  the  uses  appointed,  and  conse- 
quently the  limitations  in  such  appointment  are  part  of  such 
settlement,  and,  by  relation,  virtually  contained  therein  from  the 
time  of  the  appointment,  only  declared  by  way  of  reference  to  a 
subsequent  specification  thereof.  He  treats  the  rule  in  Shelley's 
case  as  requiring  no  identity  of  time  in  the  declaring,  but  only  of 
the  instrument  creating  the  two  limitations  ;  and  to  show  that  the 
estates  may  vest  at  different  times,  he  refers  to  the  common  case 
of  an   estate  to  two  or  more,  fur  tlieir  lives,  remainder  to  the 

(i)  Per  Lord  Hardwicke,  Duke  of  Marlborough  v.  Lord  Godolphin,  2  Ves.  61 ;  and 
see  Southby  v.  Stonehouse,  ib.  610,  accordingly. 
(fc)  See  Latch.  44;  2  Wills.  402. 
(/)  See  Bunting  v  Lepingwel,  4  Rep.  29  a. 


24  SUGDEN   ON   POWERS. 

riglit  heirs  of  the  survivor  of  tlicm,aiul  the  case  put  iu  1  Inst,  (m) 
tliat  if  lands  be  given  to  two  durinj»:  their  joint  lives, 
[  *25  ]  remainder  to  the  *heirs  of  him  who  shall  die  first,  the 
heir  will  lie  in  by  descent,  which  are  direct  authorities 
that  nor  identity  in  j)oint  of  time  of  vestin*^  of  the  two  estates  is 
requisite  to  the  operation  of  tlic  iuIc.(m) 

().  When  these  observations  were  made  by  Mr.  Fearnc,  no 
judicial  opinion  liad  been  delivered  on  the  point,  but  in  Venables 
and  Morris((>)  the  very  question  arose.  Under  a  settlement  the 
husband  was  tenant  for  life,  remainder  to  trustees  and  their  heirs 
generally,  to  preserve  remainders,  with  remainder  (after  several 
uses  which  never  arose)  to  such  uses  as  the  wife  should  appoint. 
She  a])i)ointed  to  the  right  heirs  of  her  husband.  The  Court  ulti- 
mately held  that  the  fee-simple  vested  in  the  trustees,  so  that  the 
estate  limited  under  the  power  being  merely  equitable,  could  not 
unite  with  the  limitation  to  the  husband  for  life  in  the  deed, 
which  was  a  legal  estate  ;  but  Lord  Kenyon  treated  it  as  quite  a 
clear  jioint,  that  the  appointment  was  to  be  considered  in  the 
same  light  as  if  it  had  been  inserted  in  the  original  deed  by  which 
the  jiower  of  a])})ointment  was  created ;  and  therefore  he  held, 
that  if  the  limitation  to  the  heirs  of  the  husband  had  been  a  legal 
estate,  it  would  have  enlarged  the  estate  in  the  ancestor,  and 
given  him  a  fee.     The  jioint  may  be  considered  as  settled. 

7.  It  is  hardly  necessary  to  observe  that  it  was  never  doubted 
that  the  operation  of  the  rule  in  Shelley's  case  is  not  to  exclude 
remainders  intervening  between  the  prior  estate  of  freehold  and 
the  subsequent  limitation  to  the  heir  or  heirs  of  the  body  of  the 
tenant  for  life,  although  this  point  was  actually  argued  in  Doe  v. 
Welford,(/?)  and  nothing  fell  from  Lord  Kenyon,  in  Venables  v. 
Morris,  to  warrant  such  an  argument. (^)  Of  course  where,  as 
in  Doc  V.  AVelford,  the  subsequent  liinitation  is  to  the 
[  *26  ]  tenant  for  life  himself  and  the  heirs  of  his  body  there  *is 
no  room  for  the  operation  of  the  rule,  but  he  is  tenant 
for  life  under  the  first  limitation,  and  (subject  to  intervening 
limitations)  tenant  in  tail  under  the  second  limitation. 

(m)  1  Inst.  378  b. 

(n)  Contingent  Remainders,  99,  4th  edition. 

(o)  7  Terra  Rep.  342.  438. 

(p)  12  Adol.  &  Ell.  61. 

(;>)  See  ib.  p.  71. 


RULE  IN  Shelley's  case.  25 

8.  But  the  rule  does  not  apply  so  as  to  treat  upoiver  as  a  re- 
mainder, and  therefore  an  appointment  under  it  as  void,  because 
the  particular  estate  determined  before  the  power  arose.  "Fhus 
where  the  husband  was,  under  his  own  marriage  settlement, 
tenant  for  life,  with  remainder  to  trustees  during  his  life  to  pre- 
serve contingent  remainders,  with  remainder  to  trustees  for  a 
term  of  years  to  secure  a  jointure  to  the  wife,  with  remainder  to 
the  use  of  such  children  of  the  marriage  as  the  husband  and  wife 
jointly,  or  in  default  of  such  appointment  as  the  survivor  should 
appoint,  and  in  default  of  such  appointment  to  the  issue  of  the 
marriage  living  at  the  decease  of  the  survivor  of  the  husband  and 
wife,  and  in  default  thereof  to  the  right  heirs  of  the  husband  forever. 
The  husband  died  in  the  wife's  lifetime,  and  she  afterwards  exer- 
cised licr  power,  and  it  was  argued  tliat  the  estates  limited  by  the 
execution  of  the  power  were  to  be  considered  as  if  they  had  been 
created  by  the  deed  creating  the  power.  For  some  purposes  the 
Court  said  that  was  true,  but  the  rule  was  referred  to  for  the  ])ur- 
pose  of  building  upon  it  this  argument,  that  limitations,  which 
may  possibly  take  effect  as  remainders,  shall  not  be  considered  as 
springing  uses,  and  that  if  considered  as  remainders  they  would 
have  failed  by  the  death  of  the  father  in  the  lifetime  of  the 
mother.  The  Lord  Chancellor  observed  that  no  authority  had 
been  produced  to  show  that  this  rule  applied  to  such  cases  as  the 
present,  whicli  would,  in  effect,  be  .  to  subject  to  the  same  rule  a 
contingency  depending  upon  future  events,  and  the  result  of  a 
discretion  to  be  exercised  at  a  future  time.(/') 

9.  As  a  consequence  of  the  general  rule,  it  has  been  de- 
termined, that  where  an  estate  was  conveyed  to  such  uses  as  A. 
should  a{)|)oint,  and  in  default  of  appointment  to  himself 

*in  fee,  yielding  and  paying  a  fee-farm  rent,  which  lie  [  *27  ] 
covenanted  to  pay  accordingly,  and  afterwards,  bjj  virtue 
of  his  puwer,  he  conveyed  the  estate  to  a  })urchaser,  such  pur- 
chaser was  not  subject  to  the  covenant  for  payment  of  the  rent, 
or  although  the  covenant  ran  witli  the  land  in  the  first  instance, 
yet  it  ceased  to  do  so  in  the  hands  of  the  purchaser,  because  he 
did  not  take  tlie  interest  of  the  original  grantee,  but  took  as  if 
the  original  conveyance  had  been  made  to  himself.  (5)     This  de- 

(r)  Hole  V.  Escott,  4  Myl.  &  Cra.  187;  vide  supra,  vol.  1,  p.  84. 
(s)   Roach  V.  Wadham,  G  East,  289. 

Vol.  11.  3 


26  SUGDEN   ON    POWERS. 

cision  leads  to  the  observation,  tluit  wherever  a  purchaser  is  to 
enter  into  a  covenant,  which  it  is  intended  shall  run  with  the 
land,  the  vendor  ought  to  insist  upon  tlie  purchaser  taking  a  con- 
veyance to  himself  in  fee,  and  s-hould  not  permit  the  estate  to  be 
limited  to  the  usual  uses(/)  to  bar  dower. 

10.  Of  course  the  beneiicial  interest  a  man  takes  under  the 
execution  of  a  power  forms  ]>art  of  liis  estate,  and  is,  according  to 
the  nature  of  the  property,  subject  to  his  debts  like  his  other  })ro- 
perty  ;  nor  indeed,  can  an  appointment  be  made  so  as  to  protect 
the  funds  from  the  debts  of  the  ai)})ointcc.(M) 

11.  But  equity  goes  a  step  farther,  and  holds  that  wliere  a  man 
has  fL  general  power  of  appointment  over,  a  fund,  and  he  actually 
exercises  his  power,  whether  by  deed  or  will,  the  property  ap- 
pointed shall  form  part  of  his  assets,  so  as  to  be  subject  to  the 
demands  of  his  creditors,  in  preference  to  the  claims  of  his  lega- 
tees or  appointees.  (:f)     But  in  order  to  raise  this  equity 

[  *28  ]  the  power  must  be  actually  executed,  for  *equity,  as  we 
shall  hereafter  see,  never  aids  the  uou-cxecution  of  a 
power,  (y) 

12.  And  although  creditors  in  these  cases  prevail  over  volun- 
teers, yet  if  a  party  taking  under  a  voluntary  appointment  to  sell 
to  a  person  bom  fide  and  for  a  valuable  consideration,  such  per- 
son, in  analogy  to  the  decisions  on  the  statute  of  voluntary  con- 
veyances, will  be  preferred  to  the  creditors(2')  as  having  a  pre- 
ferable equity  to  them.  Sir  W.  Grant  observed,  that  in  the  case 
of  an  appointment  of  property,  over  which  a  man  has  a  power 
unlimited  as  to  objects,  he  who  pays  a  consideration  to  the  volun- 
tary appointee  may  constructively  be  held  to  be  in  the  same  situa- 
tion as  if  he  had  in  the  first  instance  paid  it  to  him  by  whom  the 
power  has  been  executed.  But  in  such  a  case  the  claim  of  the 
assignee,  he  observed,  was  allowed  to  prevail,  not  against  persons 

(i)  See  2  Treat,  of  Purcli.  79,  80. 

(m)  Alexander  v.  Alexander,  2  Ves.  640. 

(i)  Lassels  v.  Lord  Cornwallis,  2  Vern.  405;  Free.  Cha.  282;  Tliompson  v.  Townc, 
2  Vern.  319;  Hinton  v  Toye,  1  Atk.  466;  Shirley  v.  Ferrars,  2  Atk.  172;  2  Ves.  2. 
8,  9;  7  Ves.  jun.  503  n.  cited;  see  Myl.  &  Cra.  57;  Bainton  v.  Ward,  2  Atk.  172;  2 
Ves.  2;  7  Ves.  jun.  .503  n.;  Lord  Townshend  v.  Windham,  2  Ves.  1 ;  Pack  v.  Bathurat, 
8  Atk.  2C9;  Troughton  v.  Troughton,  3  Atk.  G56;  Jenney  v.  Andrews,  G  Madd.  264; 
Attornej'-General  v.  Statt,  2  Crompt.  &  Mees.  124. 

(1/)  Holmes  v.  Coghill,  7  Ves.  jun.  4'J9;  12  Ves.  jun.  200. 

(z)  George  v.  Milbanke,  9  Ves.  jun.  190;  Hart  v.  Middlehurst,  3  Atk.  377. 


RIGHT   OF   APPOINTEE   AGAINST   CREDITORS.  27 

who  had  antecedently  any  specific  estate  or  interest  in  the  subject 
of  the  appointment,  but  against  creditors,  who  had  only  a  general 
equity  to  have  what  was  appointed  to  a  volunteer  considered  as 
assets,  if  wanted  for  the  payment  of  debts. (a) 

13.  As  we  have  already  seen,  in  some  cases  of  Crown  debts,  a 
power  in  the  debtor,  altliough  unexecuted,  will  enable  the  Crowa 
to  extend  the  lands,  but  that  is  by  virtue  of  the  King's  preroga- 
tive. (6) 

14.  Notwithstanding  the  authorities,(c)  it  is  now  settled,  tha:^ 
even  where  only  a  power  is  given  to  sell  to  pay  debts,  and  although 
the  power  is  given  expressly  or  by  implication  to  the  executors, 
the  proceeds  of  the  sale  are  equitable  and  not  legal 

assets,  (i/)     It  is  not  necessary  that  *the  descent  should  [  *29  ] 
be  broken.     A  mere  charge  of  debts  clearly  constitutes 
equitable  assets  ;(e}  and  as  a  power  to  sell  to  pay  debts  really 
creates  a  charge  in  equity  on  the  estate,  the  same  rule  has  pro- 
perly been  applied  to  all  the  cases. 

(a)  See  1  Mer.  638,  and  supra,  oh.  6. 

(6)  Vide  supra,  ch.  5,  sect.  2. 

<c)  See  1  Bio.  C.  C.  140  n. 

(rf)  Newton  v.  Bennet,  1  Bro.  C.  C.  135;  Barker  v.  Boucher,  ib.  140  n.  See  Clay 
V.  Willis,  1  Barn.  &  Cress.  364;  2  Dowl.  &  Ry.  539;  Barker  v.  May,  9  Barn.  &  Cress. 
489;  4I^Ian.  &  Ry.  386. 

(c)  Bailey  v.  Ekins,  7  Ves.  jun.  319;  Shiphard  v.  Lutwidge,  8  Ves.  jun.  26. 


SUGDEN   ON   POWERa. 


SECTION  IV. 

OP  THE   OPERATION   OV   ESTATES   CREATED   UNDER  POWERS   ON    THE 
ESTATES   IN   SETTLEMENT. 


2. 

Revocation  determines  uses  without 
entry,  &c. 

25.  ( 

8. 

Appointment  defeats  the  estates  limit- 

26.) 

ed,  in  default,  inciuding  dower. 

29.  5 

6. 

Operation  of  3  &  4  Will.  4,  c.  105,  on 

27. 

dower. 

28. 

6. 

So  an  appointment  defeated  a  judg- 
ment. 

30. 

7. 

But  by  1  &  2  Vict,  the  judgment  is  a 

82.  ] 

charge. 

33.  I 

9. 

Sale  and  exchange  defeat  all  the  estates 
except  leases. 

34.  ( 

12. 

Partition  has  the  like  operation. 

13. 

Leases  in  possession  overreach  all  the 

35.  J 

estates. 

36.  ] 

14. 

Although  the  donee  does  not  take  the 

37. 

first  estate. 

38.  ] 

16. 

Jointures  overreach  all,  so  as  to  oper- 

ate on  the  husband's  death. 

39.  ] 

20. 

Even  where  equity  aids  a  defective 
execution. 

40.  ' 

21. 

Portions  nlso  take  precedence  of  estates 
in  settlement. 

Operation  of  powers  as  between  each 

other. 

Jointure  1st.     Portions  2d. 

Lense  not  defeated  by  a  revocation. 

Sale  does  not  defeat  a  lease. 

Wliere  the  second  appointment  over- 
reaches the  first. 

Mr.  Butler's  view. 

Mr.  Saunders'  and  the  Author's  views. 

Operation  of  partial  and  repeated  exe- 
cutions of  revocation  and  new  ap- 
pointment on  the  previous  estates. 

Adams  v.  Adams. 

Points  of  law  decided  by  it. 

Brudenell  v.  Ehves. 

Powers  of  sale  and  exchange  not  al- 
ways defeated  by  a  new  settlement. 

Plielp  V.  Hay. 

Total  revocation  by  the  context. 


1.  Although  every  power  operates  as  a  power  of  revocation 

and  new  appointraent,(/)  yet  in  order  to  enable  us  to 
[  *30  ]  ^consider  accurately  tlie  effect  of  the  execution  of  powers 

on  tlic  estates  in  the  settlement,  we  must  here  distinguish 
three  kinds  of  powers  ;  viz.,  first,  a  power  of  revocation  ;  secondly? 
a  power  of  appointment  with  a  limitation  over  in  default  of  ap' 
pointment ;  and,  thirdly,  ])articular  powers  in  a  settlement,  as 
powers  of  leasing  and  jointuring. 

2.  And  first,  as  to  a  power  of  revocation :  Immediately  upon 
the  execution  of  it  the  ancient  uses  are  determined,  whether  limit- 
ed to  a  subject  or  to  the  King,(g')  without  entry  or  claim,  if  the 
party  who  has  the  power  is  himself  tenant  of  the  freehold,  as  he 

(/)  See  Tarback  v.  Marbury,  2  Vern.  511. 

(§■)  1  Jo.  193.    Sec  Reeve  v.  Attorney-General,  2  Atk.  223:  as  to  trustees,  see  4 
&  6  Will.  4,  c.  23. 


DOWER   DEFEATED   BY   EXECUTION   OP   POWER.  29 

cannot  enter  upon  himself;  and  a  claim  is  unnecessary  ;  but  it  has 
been  doubted  whether  a  claim  is  not  necessary  where  the  revoker 
has  no  interest  in  the  land. (A)  The  revocation  and  new  appoint- 
ment arc  not  in  law  a  now  alienation,  but  the  appointee  is  in  under 
the  original  settlement,  and  therefore,  under  the  old  law,  if  the 
tenure  had  been  in  capite,  a  new  fine  would  have  been  payable 
upon  the  revocation  and  new  appointment  ;(i)  for  although  the 
tenant  altered  the  old  uses  and  declared  new,  and  thereby  altered 
the  King's  tenant,  yet  as  the  King  had  given  license  to  alien  to 
the  persons  in  whom  the  seisin  was  vested,  out  of  which  alienation 
all  the  uses  as  well  future  or  present,  as  out  of  one  and  the  same 
fountain,  arose,  and  they  all  sprung  out  of  the  conveyance  as  out 
of  one  root,  for  this  cause  there  needed  no  new  license  for  limita- 
tion of  any  new  use  rising  out  of  the  settlement. 

3,  Secondly,  as  to  powers  with  estates  limited  in  default  of 
their  being  exercised.  Immediately  upon  the  execution  of  such  a 
power  the  estates  limited  iii  default  of  appointment  cease,  and  are 
defeated  ;  and  the  estates  limited  under  the  power  take 
effect  from  the  time  of  the  execution  of  the  *power,  in  [  *31  ] 
the  same  manner  as  if  they  had  been  contained  in  the 
deed  creating  the  power.  The  estates,  however,  limited  in  default 
of  appointment,  are,  as  we  have  seen,  vested  estates. (A;)  There- 
fore, where  an  estate  is  limited  to  such  uses  as  a  man  shall  ap- 
point, and  in  default  of  appointment  to  him  in  fee,  as  he  is  seised 
in  fee  until  appointment,  his  wife  becomes  dowable ;  q,nd  it  was 
formerly  doubted  whether  a  subsequent  appointment  would  drive 
out  the  wife's  right  of  dower.  (/)  It  was  to  prevent  this  question 
from  arising  that  in  the  limitations  to  bar  dower  an  interposed 
estate  was  given,  in  default  of  appointment  to  a  trustee.  There 
arc  few  points  upon  which  a  greater  difference  of  opinion  has  pre- 
vailed in  the  Profession.  It  was  formerly  much  debated  whether 
the  fee  was  vested  in  the  party,  but  that  question  is  now  at  rest. 
Some  opinions  have  taken  a  distinction  between  a  limitation  in 
■default  of  and  until  ajipointment,  and  a  limitation  merely  in  de- 

ih)  Digges'3  case,  1  Rep.  173,  5th  rcsol.;  Mo.  605;  Co.  Litt.  237  a;  and  see  Ver- 
non's case,  Mo.  744;  Doe  v.  Haddon,  4  Mann.  &  Ryl.  118. 
(i)  Lord  Montague's  case,  6  Rep.  27  b. 
{k)  Supra,  sect.  1. 
(0  See  n.  (2)  Co.  Litt.  216  a. 

3* 


30  SUGDEN   ON    POWERS. 

fault  of  appointment ;  in  wliicli  la^t  case,  it  has  been  contended, 
the  fee  does  not  vest ;  this  doctrine,  however,  cannot  be  supported 
at  tlie  ])resent  day.  It  must  bo  taken  as  a  settled  principle  that 
the  fee  is  vested  in  tiie  liusband,  and  the  right  of  dower  has 
attached.  And  the  ojjinion  of  most  of  the  eminent  men  of  the 
times,  and  amongst  them  of  the  late  Mr.  Fearne,  was,  that  the 
right  of  dower  was  defeated  with  the  estate  on  which  it  attached 
by  the  execution  of  the  power.  Upon  principle,  it  is  diihcult  to 
firame  a  reason  in  favour  of  the  right  of  dower ;  for  although  the 
estates  limited  by  the  execution  of  the  power  take  eflect  only  from 
the  time  of  the  execution  of  the  power,  yet  the  estates  limited  in 
default  of  appointriient  cease  the  instant  before  the  new  uses 
arise. (I)    Perhaps  the  doubt  may  have  been  raised  on  this  ground, 

that  as  a  conveyance  of  the  fee  would  in  fact  destroy  the 
[  *32  ]  *power,  a  partial  cliarge  or  right  attaching  on  it,  even  by 

operation  of  law,  must  have  the  effect  of  defeating  the 
operation  of  the  power  pro  tanto.  The  opinions  of  the  Judges  on 
this  point  stands  thus :  In  Cave  and  Ilolford,  Mr.  Justice  Heath 
expressed  an  opinion,  tliat  the  power  would  enable  the  donee  to 
bar  the  claim  of  dower. (/»)  In  Cox  and  Chamberlain,  Lord 
Alvanley  spoke  rather  dubiously  of  the  question.  He  said,  that 
by  the  execution  of  the  power  the  estate  in  fee  might  be  super- 
seded, "  though  perliaps  not  to  bar  dower."  Lord  Eldon  appears 
to  have  thought  with  Mr.  Justice  Heath,  that  the  appointment 
drove  out  all  intermediate  estates,  and  the  dowress  could  not 
sustain  her  claim  of  dower  upon  the  new  estate  in  the  appointee 
of  the  power.(w)  In  a  later  case  Lord  Eldon  said,  that  notwith- 
standing his  own  opinion,  if  the  point  had  arisen,  he  would  have 
permitted  the  party  to  take  the  opinion  of  a  Court  of  Law  upon 
it.(II) 

4.  In  the  late  case  of  Moreton  v.  Lees,(o)  the  point  was  decid- 

(m)  See  3  Ves.  jun.  G57. 

(7i)  See  Maundrcll  v.  Maundrcll,  10  Ves.  jun.  246. 

(0)  C.  C.  Lancaster,  March  Assizes,  1819,  upon  a  special  case  before  Richards,  C 
B.  and  Wood,  B. 

(1)  The  doubt  could  scarcely  be  supported  on  Buckworth  v.  Thirkell,  Coll.  Jurid. 
332,  3  Bos.  &  Pull.  652  n.,  if  even  that  case  itself  had  been  rightly  decided.  See 
Moody  V.  King,  2  Bing.  447,  and  qu. 

(II)  The  case  of  Wilde  v.  Fort,  4  Taunt.  334,  may  be  treated  as  an  authority  in 
favour  of  the  right  of  dower;  but  it  is  not  stated  whether  Ilalliday  executed  his  power 
or  conveyed  his  estate.     If  the  latter,  of  course  the  point  did  not  arise. 


DOWER  DEFEATED  BY  EXECUTION  OF  POWER.        31 

ed  against  the  right  of  dower.  The  widow  l)rought  her  writ  of 
dower,  and  the  defendants  pleaded  tliat  the  husband  was  only 
seised  by  virtue  of  a  feoflment,  dated  12th  March  1787,  whereby 
the  estate  was  granted  to  the  husband  and  his  heirs  and  assigns, 
to  such  uses  as  he  should  appoint  by  deed  or  will ;  and  for  want, 
or  in  default  of,  and  in  the  mean  time,  and  until  appointment,  to 
the  use  of  the  husband,  his  heirs  and  assigns  forever ;  and  they 
also  pleaded  an  appointment  in  fee  by  him  ;  a  verdict  was  found 
for  the  plaintiff,  subject  to  tlie  opinion  of  the  Court,  and  the  Court, 
upon  argument,  decided  against  the  widow's  right ;  and 
*the  point  was  decided  the  same  way  in  the  later  case  of  [  *33  j 
Ray  V.  l*ung,  which  sets  the  point  at  rest.(/>)  The  cer- 
tificate in  that  case  was  confirmed  by  the  Vice-Chancellor. 

5.  This  point  is  noW  only  important  as  a  question  of  construc- 
tion applicable  to  like  cases,  and  as  regards  women  married 
before  the  1st  Jan.  1834,  for  in  other  respects  the  Act  of  3  &  4 
Will.  4.  c.  105,  has  placed  a  woman's  dower  entirely  in  the  power 
of  her  husband  by  act  inter  vivos,  or  by  will,  or  Ijy  a  simple  decla- 
ration by  deed  or  will. 

6.  Upon  the  same  principle  upon  which  dower  was  held  to  be 
excluded  by  an  appointment,  it  was  decided  that  a  judgment 
against  the  party  having  a  power  of  appointment,  with  the  estate 
vested  in  him  until  and  in  default  of  appointment,  was  defeated 
by  tlie  subsequent  execution  of  the  power  in  favour  of  the  mort- 
gagee. (7)  The  Court,  in  delivering  judgment,  said,  that  it  had 
been  established  ever  since  tlie  time  of  Lord  Coke,  that  when  a 
power  is  executed,  the  person  taking  under  it  takes  under  him 
who  created  the  power,  and  not  under  him  who  executes  it.  The 
only  exceptions  are,  where  the  person  executing  the  power  has 
granted  a  lease  or  any  other  interest  which  he  may  do  by  virtue 
of  his  estate,  for  then  he  is  not  allowed  to  defeat  his  own  act. 
But  suffering  a  judgment  is  not  within  the  exception,  as  an  act 
done  by  the  party,  for  it  is  considered  as  a  proceeding  in  invitum^ 
and  therefore  falls  within  the  rule.  And  it  is  immaterial  that  the 
purchaser  had  notice  of  the  judgment,(r)  and  that  a  portion  of 
the  purchase-money  was  set  aside  as  an  indemnity  against  it.(i) 

(;))  5  Barn.  &  Adol.  5G1;  6  Madd.  310. 

(5)  Doe  V.  Jones,  10  Barn.  &  Cress.  459;  Tunstall  v.  Trappes,  3  Sim.  300. 

()■)  Eaton  V.  Sanxter,  G  Sim.  517. 

(s)  Skeeles  t.  Shearly,  8  Sim.  153;  3  Myl.  &  Cra.  112. 


S2  SUGDEN   ON   POWERS. 

7.  But  this  is  altered  by  a  late  act,(^)  which  makes  a  judgment 
an  actual  charge  on  the  debtor's  property,  where  he  has  at  the 
time  of  the  judgment  entered  up,  or  at  any  time  afterwards,  any 

disposing  power  over  it,  which  he  might,  witliout  the 
[  *'M  ]  assent  of  any  other  person,  exercise  for  his  *own  benefit ; 

so,  that  although  the  execution  of  the  power  were  still  to 
have  the  same  operation,  yet  the  judgment,  by  reason  of  the 
power  itself,  would  be  binding. 


8.  Thirdly,  in  regard  to  particular  powers  in  a  settlement  as 
powers  of  leasing,  jointuring,  charging  with  portions  for  younger 
children,  selling  and  exchanging,  &c.,  these  we  may  consider 
under  two  views :  1st,  with  respect  to  the  operation  of  the  powers 
on  the  limitations  in  the  settlement,  and  2dly,  in  relation  to  their 
effect  on  each  other.     And  first, 

9.  Powers  of  sale  and  exchange,  as  their  very  object  points  out 
necessarily  roots  out  all  the  estates  in  settlement,  except  so  far  as 
any  estate  is  protected  by  the  intention  of  the  instrument  creating 
it,  or,  wliich  properly  belongs  to  the  next  branch  of  our  inquiry, 
where  leases  have  already  been  granted  under  powers  in  the  set- 
tlement. Of  course  the  estate  for  the  maintenance  and  benefit  of 
which  they  were  granted,  will  remain  subject  to  them  just  as  if  it 
had  been  liable  to  them  before  the  power  was  created.  The 
estates  and  interests  thus  defeated  are  of  course  transferred  to 
the  estates  to  be  purchased  with  the  moneys  produced  by  the 
sale,  or  to  the  estates  taken  in  exchange. 

10.  Of  course  at  law  whatever  interests  are  conveyed  by  the 
settlement  creating  the  power,  will  be  defeated  by  the  exercise 
of  the  power,  although  a  question  may  arise  in  equity  whether 
the  power  was  properly  created.  The  case  of  Fry  v.  Fish,  which 
will  be  cited  in  another  place, (?*)  is  an  instance  of  this :  no  one 
doubted  that  the  power  was  capable  of  being  executed  at  law,  but 
the  question  was  whether,  as  the  daughter  was  tenant  for  life  in 
remainder,  a  present  power  of  sale  ought  to  have  been  created  ; 
but  as  the  mother's  life  estate  was  comprised  in  the  settlement,  it 
was  supported,  for  a  sale  would  not  accelerate  the  interests  of 

(0  1  &  2  Vict.  c.  110,  9.  13.  (u)  Infra,  ch.  18. 


SALE,   ETC.    DEFEATS   USES   IN   SETTLEMENT.  ?)i\ 

the  parents  by  turning  a  remainder  into  a  possession  at  the  ex- 
pense of  the  issue,  but  they  would  liave  to  wait  for  !heir 
•beneficial  interest  until  the  death  of  the  mother,  when  [  *35  ] 
the  remainder,  if  the  estate  had  not  been  sold,  would 
regulalry  have  fallen  into  possession.  Both  this  case  and  the 
case  of  Fox  v.  Prickwood  prove  that,  although  the  power  is  vest- 
ed in  a  tenant  in  remainder,  yet  if  from  the  intention  expressed 
or  implied  its  immediate  execution  is  not  restrained,  it  will  over- 
reach the  estates  in  the  settlement  prior  to  that  of  the  donee  of 
the  power. 

11.  So  in  Dike  v.  Ricks(;r)  the  testator  devised  to  his  wife  for 
life,  and  he  appointed  that  if  liis  personal  estate  proved  insuffi- 
cient to  pay  his  debts,  and  maintain  her  and  her  children,  then 
she  should  sell  all  the  estate,  or  so  much  as  should  be  necessary. 
She  sold  the  fee,  and  conveyed  it  by  bargain  and  sale,  "  and 
where  it  was  said  that  this  sale  shall  be  quoad  the  estate  for  life 
only,  which  is  transferred  by  the  statute,  and  the  reversion  was 
conveyed  by  the  will,  it  was  held,  that  when  she  took  upon  her  to 
sell  she  sold  the  entire  estate  and  inheritance  of  the  land,  wherein 
the  estate  for  life  is  contained,  and  she  did  not  by  authority  of 
the  will  convey  the  reversion  only  expectant  upon  the  estate  for 
Ufe."cr) 

12.  Partition  depends  upon  the  same  principles  as  a  sale  or  an 
exchange.  Therefore  where  a  man  under  a  power  in  the  settle- 
ment of  an  undivided  share  made  a  charge  in  favour  of  his  own 
executors,  and  then  under  another  power  joined  in  a  partition, 
and  did  not  disclose  the  appointment,  and  a  divided  portion  was 
conveyed  to  the  uses  of  a  settlement,  it  was  held  that  the  charge 
under  the  power  operated  over  the  portion  so  settled. (v/)  The 
Court  observed  that  doubtless  the  uses  were  revoked,  and  the 
power  under  which  the  charge  was  made  ;  but  the  revo- 
cation was  under  a  *powcr  given  by  the  settlement,  the  [  *36  ] 
true  object  of  which  was  not  to  destroy  any  of  the  uses, 

but  to  shift  them  with  all  their  consequences  to  the  new  estates,  to 
be  purchased  in  consequence  of  the  revocation,  it  being  merely  for 

(i)  Cro.  Car.  335. 

(y)  Earl  of  Uxbridge  v.  Bnyley,  1  Ves.  jun.  I'.'O;  4  Bro.  C.  C.  ]3. 
(I)  LewtliAvtiite  v.  Clarkson,  2  You.  ii  Coll.   372,  was  a  case  of  no  difficulty,  but 
the  marginal  note  is  wrong,  and  calculated  to  mislead. 


34  SUGDEN  ON   POWERS. 

the  pvirposc  of  selling  the  estates  and  buying  others  to  the  same 
uses,  or  for  the  purpose  of  a  partition,  but  without  any  intention 
to  make  any  serious  alteration  in  these  uses.  That  being  so,  con- 
sidering the  meaning  of  the  original  deed,  and  of  the  subsc(|ucnt 
deed  having  that  sole  operation  to  convert  the  undivided  part  into 
separate  property,  and  to  lay  all  the  charges  which  were  upon  the 
undivided  part  upon  that  which  was  to  be  taken  in  the  room  of  it, 
they  thought  the  uses  and  powers  under  them  ought  to  attach 
themselves  to  the  newly  acquired  estate,  exactly  as  they  stood 
upon  the  original  estate,  without  any  altex-ation  in  the  interest  of 
any. 

Upon  the  form  of  the  conveyance  of  the  separate  portion,  the 
Coui't  ol)servcd,  that  the  new  estate  was  limited  to  the  same  uses 
to  wliich  the  undivided  part  was  limited  by  the  original  settlement. 
The  Avord  "  charge,"  to  be  sure,  was  not  used,  but  the  word 
"  use"  was.  Whenever  parties  have  power  by  deed  to  do  a  par- 
ticular act,  when  done  under  the  power,  it  is  as  if  incorporated  in 
the  original  deed  when  executed  ;  therefore,  when  the  second 
limitation  was  to  the  same  uses  as  the  original  deed  this  might 
properly  ha  termed  a  use,  for  it  was  an  intei'cst  growing  out  of 
the  original  poAver. 

13.  It  holds  generally  true,  that  a  power  to  create  leases  to 
take  effect  in  possession,  will  control  and  overreach  all  the  powers 
and  estates  in  the  settlement. (3^)     Thus,  in  a  case(a)  where  lands 

were  settled  to  A.  for  life,  then  to  tr*istees  for  a  term, 
[  *37  ]  ui)on  such  trusts  as  A.  should  direct,  and  *then  to  uses 

in  strict  settlement,  with  a  power  of  leasing  to  A.;  A. 
first  declared  the  trusts  of  the  term  for  payment  of  Ms  debts,  and 
then  granted  a  lease  in  exercise  of  his  power.  It  was  objected, 
that  she  estate  was  bound  by  the  declaration  of  trusts  by  A.,  and 
that  he  could  not  afterwards  execute  his  power,  so  as  to  over- 
reach the  term  ;  but  this  was  ovei'rulcd  ;  "  for  tlie  term  was  origi- 
nally subject  to  the  power,  being  contained  in  the  same  deed,  and 
he  having  exercised  his  power,  the  leases  are  precedent  to  the 
term,  and  control  it." 

14.  So  where  an  estate  was  limited  to  a  stranger  for  15  years 

{z)  See  the  argument  of  Biidgemaii,  Chief  Justice,  in  Bosworth  v.  Farrand,  Cart. 
Ill;  and  nee  2  Ro.  Abr.  '260,  pi.  5;  S.  C.  Cro.  .Tac.  347,  nom.  Fox  v.  Prickwood. 
(a)  Talbot  t.  Tipper,  Skin.  '127;  Doe  v.  Thomas,  9  Barn,  &  Cress.  288, 


JOINTUEE  OVERREACHES   USES   IN   SETTLEMENTS.  35 

for  a  valuable  consideration,  remainder  to  the  owner  for  life,  with 
a  power  to  make  leases  in  possession,  it  was  held,  that  he  could 
make  leases  before  his  estate  fell  into  possession  ))y  tlie  expiration 
of  the  fifteen  years  ;(/>)  for  in  construction  of  law  the  lease  pre- 
cedes all  the  particular  estates,  and  is  taken  as  if  the  use  had 
originally  been  limited  to  the  lessee,  and  after  to  the  uses  of  the 
settlement,  that  is,  the  other  uses  in  construction  of  law  follow 
it  ;(c)  and  Bridgeman,  C.  J.,  laid  it  down,  that  where  powers  are 
to  be  put  in  execution  to  take  effect  subsequently,  and  to  stand 
charged  with  estates  made  by  those  who  claim  under  the  limita- 
tions of  the  uses  in  tlie  conveyance,  there  ought  to  be  express 
words  for  it,  and  so  had  been  in  all  conveyances  he  ever  saw,  for 
otherwise  it  was  contrary  to  the  nature  of  the  pcwer,  which  is 
understood  to  liave  its  essence  from  him  who  created  it,  and  in 
construction  of  law  to  precede  the  limitation  of  uses. (c/) 

15.  Again(e)  where  an  estate  was  limited  to  a  mortgagee  for 
1,000  years,  remainder  to  A.  for  life,  with  remainders  over,  and 
A.  had  a  power  to  lease  in  possession,  to  take  effect 

*from  the  date  of  the  deed,  or  the  day  of  her  death,  and  [  *38  ] 
she  exercised  the  power  by  creating  a  lease  to  com- 
mence from  lier  death,  it  was  held  that  tlie  lease  took  precedence 
of  the  1,000  years'  term. 

16.  The  same  rule  prevails  where  any  other  estate  is  author- 
ized to  be  raised  by  a  power,  and  from  the  nature  of  the  interest 
to  be  raised  is  to  take  effect  in  possession,  or  next  after  the  estate 
of  the  donee  of  the  power.  Therefore  jointures,  like  leases  will 
supersede  all  the  estates  in  the  settlement  which  would  prevent 
the  jointress  from  taking  her  jointure  upon  tlie  death  of  her  hus- 
band, wliich  is  the  period  at  wliich  it  should  arise  ;  for  powers  to 
jointure,  like  powers  to  lease,  take  precedence  of  all  the  estates 
in  the  settlement,  unless  it  be  otherwise  provided  by  the  instru- 
ment creating  the  power. 

17.  Thus  in  Sandys  v.  Sandys,(/)  where  in  a  strict  settlement 
on  a  marriage  a  term  of  years  was  created  in  remainder,  to  raise 

(6)  Fox  V.  Prickwood,  2  Kulstr.  21G;  1  Ro.  12;  Cro.  Jac.  349;  2  Ro.  Ab.  2G0,  pi. 5. 

(c)  Whitelock's  case,  8  Rep.  71  a;  Bridg.  by  Ban.  1G4. 

(rf)   Briilg.  by  Ban.  176. 

(€)  Rogers  v.  Ilmiiplireys,  4  Ad   &  Ell.  299. 

(/)  1  P.  Wms.  706.     See  Bradbury  v.  Uuntcr,  3  Ves.  jun.  187.  189.  2G0. 


36  SUGDKN   ON   POWERS. 

portions  for  ilaiiglitors  in  dorault  of  issue  nialo,  willi  power  for 
the  Imsltand  to  make  a  jointure  on  a  seconil  wife,  alLhougli  the 
issue  male  of  the  first  marriage  having  failed,  it  was  licld  that  the 
portions  were  raisable  out  of  the  reversionary  term  by  sale  or 
mortgage,  yet  tlie  decree  was  to  be  sul)ject  to  the  father's  power 
of  malting  a  jointure  on  a  second  wife. 

18.  So  in  Carter  v.  Carter,(g-)  a  settlement  was  directed  to  be 
made  upon  one  for  life,  remainder  to  his  sons  in  strict  settlement, 
remainder  to  trustees  for  fifteen  years,  for  raising  portions  for 
daughters,  and  a  power  to  the  father  to  make  a  jointure,  which  he 
exercised  by  appointing  the  whole  profits.  The  Master  of  the 
Rolls  observed,  tliat  the  term  was  not  to  commence  until  after  the 
death  of  the  wife  ;  for  the  lather  having  a  power  given  to  him  to 
limit  a  jointure,  and  he  having  executed  that  power,  lets  loose 

this  estate  for  life  precedent  to  the  estates  to  his  first 
[  *39  ]  and  every  other  son,  and   *tliis  term  being  subsequent  to 

those  limitations,  must  be  postponed  to  the  jointure.  In 
a  case(/t)  before  Lord  Hardwicke,  where,  by  will,  portions  were 
provided  for  the  testator's  son's  daughters,  with  a  power  to  him 
to  make  a  jointure,  and  he  appointed  the  whole  estate  to  his  wife, 
Tjord  Hardwicke  said,  that  as  to  the  jointress  it  was  very  clear 
that  the  portions  under  a  term  created  by  the  will  could  not  be  so 
raised  as  to  aftcct  her,  for  if  the  jointure  had  been  limited  by  the 
will  itself  there  could  liave  been  no  doubt,  and  it  was  certainly 
the  same  thing  when  it  was  done  by  a  power  ;  and  when  the  hus- 
band executed  it  the  estate  arose  out  of  the  will,  and  consequently 
was  precedent  to  the  term  for  raising  portions. 

19.  In  a  later  case(f)  the  devise  was  to  the  testator's  son  for 
life,  with  remainder  to  his  sons  and  daughters  in  strict  settlement, 
and  failing  such  issue  he  willed  that  the  estates  should  stand  charged 
with  and  be  subject  to  the  payment  of  500/.  a-piece  to  certain  chil- 
dren, which  he  willed  should  be  raised  and  paid  to  them  loithin 
six  montlis  after  the  death  of  the  son,  ivithout  issue,  and  subject 
to  such  charge  to  A.  for  life,  with  remainders  over,  with  a  power 
to  the  son,  if  he  should  marry,  to  make  a  jointure  of  all  or  any 
part  of  the  estates.     The  son  exercised  the  power,  and  the  Lord 

(ff)  Mosc.  365. 

(/()  Hall  V.  Carter,  2  Atk.  S54;  9  Mod.  347. 

(j)  Reynolds  v.  Meyrick,  1  Eden,  48. 


JOINTURE   OVERREACHES   USES   IN   SETTLEMENTS.  37 

Keei^er  said,  it  was  a  question  of  intention.  If  the  testator  had 
said  the  legacies  should  be  paid  within  six  months  after  the  failure 
of  issue  of  the  son,  and  were  then  to  be  raised,  he  should  liave 
thought  it  would  have  over-rode  tlic  jointure,  being  a  charge  on 
that  estate,  and  that  the  jointress  must  have  kept  down  the  inter- 
est for  life.  But  it  could  not  be  contended  that  the  jointress  was 
chargeable,  and  therefore  the  words  "  payaljle  within  six  months 
after  the  death  of  the  son"  were  not  aI)solute  words,  but  must  be 
explained  by  the  context,  with  this  restriction,  there  being  no 
jointress  then  in  being.  The  words  "  within  six  months, 
<fec.,"  are  *synonymous  to  those,  "  on  the  estate  to  A.  [  *40  ] 
coming  into  possession."  But  after  he  had  used  these 
words  he  gave  the  power  to  jointure,  and  postponed  the  payment 
to  another  estate. 

20.  And  of  course  if  the  power  to  jointure  be  defectively  exe- 
cuted, but  the  defect  is  aided  in  equity  in  the  wife's  favour,  the 
jointure  Avill  equally  prevail  over  the  portions. (A;) 

21.  The  like  rule  in  general  applies  to  poivers  to  raise  portions, 
which,  where  they  are  not  restricted  by  other  powers  in  the  same 
instrument,  will  enable  the  donee  to  charge  them  so  as  to  take 
precedence  over  the  estates  in  the  settlement ;  but  whether  they 
will  displace  a  jointure  is  a  doubtful  point. 

22.  In  a  case  where  the  settlement  was  to  A.  for  life,  remainder 
to  such  woman  as  he  should  marry,  for  life,  remainder  to  the  first 
and  other  sons  in  tail,  remainder  to  A.  in  fee,  Avith  a  power  to 
him  to  charge  portions  for  younger  children,  which  he  afterwards 
duly  exercised  :  it  was  prayed  that  the  remainder  only  might  be 
charged  with  the  portion  ;  but  the  Court  held,  that  tlie  power 
and  the  charge  made  pursuant  thereto  did  affect  the  wife's  estate 
for  life  as  well  as  the  remainder  ;  and  that  it  was  like  a  power  of 
leasing,  which  over-reaches  all  the  estates,  for  which  reason  the 
Lord  Chancellor  said  it  was  usual  to  insert  a  proviso  in  such 
power  of  charging,  that  it  shall  not  prejudice  the  jointure  or 
other  preceding  estates. (/)  The  decree  was  for  low  rates  of 
interest  for  different  periods,  till  the  portions  were  payable. 
Upon  a  rehearing  before  Lord  Cowper,  on  account  of  the  rate  of 

(A.)  Churchman  v.  Harvey,  Ambl.  339,  and  App.  I.  p.  824,  Blunt' s  edition. 
(Z)  Beale  v.  Bealc,  1  P.  Wms.  244. 

Vol.  II.  4 


38  SUGDEN   ON   POWERS. 

interest, (w)  he  said  tliat  the  former  decree  was  ratlicr  a  recom- 
mendation to  the  mother  to  make  them  the  allowance,  than  a 
decree  to  charge  her  jointure  therewith,  but  he  must  now  give 
them  no  more  than  what  in  strict  justice  they  deserved,  and  that 

since  the  portions  were   not  payable   till  eighteen  or 
[  *41  ]  *marriage,   they   could  not   charge   the  jointress   with 

interest  thereof  in  the  mcaii  time,  but  that  the  reason  of 
postponing  the  payment  thereof  till  that  time  being  in  favour  of 
the  jointress,  she  ought  to  maintain  them  out  of  the  profits  of  her 
jointure  lands,  but  in  regard  the  portions  could  not  in  strictness 
carry  interest  till  they  became  i)ayable,  they  should  be  allowed 
full  interest  from  that  time  ;  and  whether  the  portions,  on  the 
daughter's  attaining  eighteen  or  marriage,  should  be  immediately 
raised,  so  as  to  charge  and  affect  the  jointure  estate  for  life,  or 
wait  till  her  death,  he  said  it  would  be  time  enough  to  consider 
of  that  when  that  came  to  be  the  case.,  The  judgment  is  some- 
what ambiguous,  but  Lord  Cowper  appears  to  have  differed  from 
Lord  Harcourt.  If  the  rule  is  universally  in  favour  of  portions, 
there  is'  no  distinction  between  a  jointure  and  portions ;  but 
either  when  raised  by  means  of  a  power,  will  prevail  over  the 
other,  if  actually  created  by  the  settlement  itself.  There  would, 
however,  be  no  difficulty  in  drawing  a  distinction  between  the  two 
charges  which  is  pointed  out  by  their  nature.  Where  they  come 
in  competition,  the  jointure  should  precede  the  portion.  Where 
both  are  created  under  powers,  and  although  the  portions  are 
first  charged,  a  jointure  would,  it  is  apprehended,  prevail  over 
portions.  Upon  the  same  principle  a  jointure,  although  limited 
by  the  deed  creating  a  power  to  charge  portions,  might  be  allowed 
to  prevail  over  the  portions  when  charged.  The  proper  place  in 
the  settlement  in  which  to  insert  such  a  charge  is  after  the  life 
estate  of  the  father,  and  subject  to  the  jointure  of  his  wife  ;  for 
such  is  the  position  assigned  to  it  in  all  settlements. 

2^.  In  the  case  of  Mosley  and  Mosley,(w)  where  there  was  no 
conflict  with  a  joiutress,  under  a  strict  settlement  by  a  father  and 
his  eldest  son,  terms  of  years  were  created  to  raise  portions  for 
the  father's  younger  children.  And  poivers  were  given  to 
the  son,   subject  to  his   father's  life-estate,   to  direct  portions 

(m)  Gilb.  Kq.  Rep.  93;  Prec.  Cha.  405. 
(ra)  SVes.jun.  248. 


PRIORITY   OF   PORTIONS.  39 

*to  bo  raised  for  his  younger  children.  These  powers  [  *42  ] 
were  executed,  and  the  father's  younger  children  insisted 
that  their  portions  were  a  prior  incumbrance,  as  they  were  created 
by  the  settlement,  which  were  executed  long  prior  to  the  deeds 
executing  the  powers.  But  Lord  Alvanley,  then  Master  of  the 
Rolls,  held  otherwise.  He  said  that  the  moment  the  power  was 
executed  it  was  as  if  in  the  original  deed,  and  in  that  way  it 
would  stand  now.  This  power  was  subject  to  the  father's  life- 
estate  ;  therefore  it  must  be  taken  as  if  made  subsequent  to  the 
life-estate  of  his  father.  As  soon  as  he  has  executed  that  power, 
the  term  created  by  it  comes  in  immediately  after  the  estate  of 
the  father,  before  the  other  terms,  but  not  before  his  life-estate. 
The  charge,  therefore,  is  the  first  incumbrance  upon  the  estate. 
Suppose  the  power  was  not  for  a  provision  for  younger  children, 
but  to  secure  a  jointure  to  his  wife  ;  according  to  the  defendants, 
that  jointure  would  be  postponed  to  his  younger  brother's  fortunes. 
What  pretence  is  there  for  that  ?  The  moment  he  raises  the 
term,  it  is  put  in  after  the  life  of  his  father,  to  which  the  power  is 
subject.  He  could  not,  he  added,  in  point  of  conveyancing,  put 
it  in  any  where  else. 

24.  We  may  perhaps  here  notice  a  late  case,  where  there  was 
a  strict  settlement,  and  the  ultimate  limitation  was  to  the  use  of 
the  settlor  in  fee,  "  subject  nevertheless,  and  charged  with  the 
payment  of  6,000/.  as  he  should  appoint."  It  was  insisted  by  the 
bill,  but  not  relied  upon  in  argument,  that  the  power  only  ope- 
rated as  a  charge  upon  the  ultimate  reversion.  The  Master  of 
the  Rolls  held,  that  upon  the  true  construction  the  reservation  of 
the  riglit  to  charge  must  extend  to  the  estate  in  all  the  limit- 
tions  of  it  and  not  be  confined  merely  to  the  reversionary  interest 
limited  to  himself,  over  which  he  would  have  a  disposing  power 
at  allevents.(o) 


*2o.  Secondly,  Where  several  powers  have  been  given  [  *43  ] 
by  the  same  deed,  and  two  or  more  of  them  are  executed, 
and  no  provision  has  been  made  in  regard  to  their  priorities,  the 

(o)  Stackhouse  v.  Barnston,  10  Ves.  jun.  453.     See  Forster  v.  Graham,  2  Str.  901. 
2  Bam.  B.  R.  341.  428;  see  Simpson  t.  O'Sullivan,  3  Dru.  &  War.  446. 


40  SUGDEN   ON   POWERS. 

intention  of  the  settlement  and  the  object  of  the  powers  mnst  be 
the  best  guides  to  the  construction. 

20.  In  Edwards  v.  Shater,(;y)  in  a  settlement  l)y  a  fine,  the 
settlor  was  made  tenant  for  life,  and  it  was  provided  that  if  he 
should  make  a  jointure  to  his  wife,  and  make  a  lease  for  thirty- 
one  years,  to  commence  after  his  death,  or  the  raising  of  3,000/. 
for  his  daughters'  i)ortions,  then  the  conusees  of  the  fine  should 
stand  seised  to  those  uses.  He  made  a  jointure  pursuant  to  his 
power,  and  then  made  a  lease  for  thirty-one  years,  to  begin  after 
his  death,  for  raising  the  portions.  And  the  two  powers  were 
held  consistent ;  for  during  the  continuance  of  the  jointure  the 
lease  shall  not  take  effect  in  point  of  interest,  Ijut  shall  go  on  m 
time,  and  the  residue  of  the  term  that  remains  unexpired  after 
the  deatli  of  the  jointress  shall  take  efl'ect  in  interest,  and  no  more. 
27.  In  the  case  of  Yelland  and  Ficlis,(ry)  Coke,  Ohief  Justice, 
laid  it  down,  that  if  one  make  a  conveyance,  MTth  a  power  to 
make  leases  and  a  power  of  revocation,  if  he  make  a  lease  (I)  'he 
may  afterwards  revoke  for  the  residue.  Indeed,  it  could  not  be 
argued  that  the  interest  of  a  lessee,  who  is  considered  a  pur- 
chaser j^ro  tcmto,  would  be  defeated  by  the  subsequent  execution 
of  another  power  by  the  lessor.  It  were  not  easy  to  lay  down 
any  abstract  proposition  on  tliis  head ;  l)ut  questions  upon  it 
seldom  occur.  The  dictum  in  jMoore  is  perhaps  the  only  oljserva- 
tion  in  the  books  on  this  point.'  The  nature  of  the  powers,  in 
most  instances,  sufficiently  points  out  the  priority  to  whicli  the 

estates  created  under  them  are  entitled.  Thus  a  power 
[  *44  ]  of   sale   must   d'cfeat    *every  limitation   of  the   estate, 

whether  created  directly  by  the  deed,  or  through  the 
medium  of  a  power,  except  estates  limited  to  persons  standing  in 
the  same  situation  as  the  purchaser  ;  for  example,  a  lessee,  for 
the  very  object  of  a  power  of  sale  is  to  enable  a  conveyance  to  a 
purchaser  discharged  of  the  use  of  the  settlement,  and  it  is  imma- 
terial whether  any  particular  use  was  really  contained  in  the 
original  scttlcment,«or  was  introduced  iuto  it  in  the  view  of  the  law 

(p)  Hard.  410. 

(</)  Mo.  788, 

(I)  Viner,  who  inserts  this  dictum  in  his  AbriJgment,  after  this  word  "  lease," 
adds  the  word  [of  part]  between  brackets.  There  is  no  pretence,  liowevcr,  for  this 
interpolation. 


PRIORITY   OF   APPOINTMENTS.  41 

by  the  executiou  of  a  power  contained  in  it.  The  same  principle 
applies  to  a  lease.  As  to  powers  executed  in  favour  of  the  family, 
a  jointure,  whether  created  before  or  after  a  provision  for  the 
jointress's  younger  children,  ought  to  take  precedence  of  it ;  but 
they  must  both  give  way  to  a  subsequent  execution  of  a  power  to 
sell  and  exchange,  or  lease.  As  we  have  seen,  the  jointure  and 
portions  will  l)e  transferred  to  the  new  estates  under  the  usual 
powers  in  settlements,  and  the  leases  will  operate  for  their  beneJBit. 
If  a  tenant  for  life  had  a  power  to  charge  a  sum  generally,  and 
also  powers  to  sell  and  exchange,  and  lease,  &c.  it  is  said  that 
the  use  or  estate  appointed  by  either  of  those  powers  would  vest 
in  the  appointee  in  possession,  and  no  subsequent  act  of  the  ten- 
ant for  life  could  defeat  his  own  previous  appointment,  in  favour 
of  a  purchaser.  If  the  subsequent  could  defeat  the  previous  ap- 
pointment, the  appointee  under  the  previous  appointment  would 
not  take  an  estate  in  possession  according  to  the  express  purport 
of  the  appointment,  (r)  But  this  cannot  be  considered  a  general 
rule,  for  in  some  cases  the  charge  appointed  may  be  defeated  by 
an  exercise  of  the  power  of  sale,  and  transferred  to  the  estate  to 
be  purcliascd  in  lieu  of  it. 

28.  In  a  late  case, (5)  where  under  the  will  the  tenant  for  life 
had  a  power  of  leasing,  and  the  executors  had  a  power  to  sell  or 
mortgage,  although  it  was  held  that  an  exercise  of  the  latter  pQwer 
overreached  the  life-estate,  and  all  estates  created  by 

way  of  interest  out  of  it ;  yet  it  was  assumed,  both  *at  [  *45  ] 
the  bar  and  by  the  bench,  that  a  lease  granted  by  the  ten- 
ant for  life  under  his  power,  before  the  exercise  of  the  power  by 
the  executors,  had  continuance  after  a  mortgage  executed  under 
the  latter  power ;  and  it  was  held  that  the  mortgagee  took  the 
immediate  reversion  expectant  upon  the  lease. 

29.  Where  there  is  a  term  to  raise  portions  as  the  father  shall 
appoint,  and  he  has  also  a  power  to  jointure,  if  the  latter  power  is 
exercised  it  will,  as  we  have  seen,  override  the  term ;  and  it  is 
immaterial  that  an  appointment  be  made  of  the  portions  before 
the  jointure  was  appointed. (^) 

(r)  1  Sand,  on  Uses,  161,  3d.  edit, 
(s)  Bringloe  v.  Goodson,  4  Bing.  N.  C.  726. 

(t)  Carter  v.  Carter,  Mose.  365.  There  the  term  was  after  the  estates  tail  to  the 
sons;  vide  supra. 

4* 


42  suGDEN  ON  rowing, 

r>0.  Wc'  may  here  observe,  lluit  Avliei-c  a  luxriy  having  two 
powers,  for  cxamjtle,  to  eharge  portions  and  to  lease,  executes 
one  power,  leaving  tlic  other  in  oi)eration,  the  exercise  ol"  the  lat- 
ter may  supersede  tlie  estate  actually  first  appointed,  just  as  if  it 
had  been  contained  originally  in  the  settlement  creating  the 
powers.     Tills  must  depend  upon  the  nature  of  the  powers. 

31.  Thus  in  Doc  v.  Thomas(?/)  a  woman  was  tenant  for  life 
under  a  settlement,  with  i)ower  to  charge  an  annuity  for  any  hus- 
band she  might  marry,  and  also  portions  for  her  children,  and 
also  a  power  to  lease  for  twenty-one  years :  she  upon  her  marriage 
exercised  the  two  first  powers,  and  using  both  words  of  leasing 
and  appointing,  limited  the  estate  to  trustees  for  500  years, /row 
thenceforth  next  ensuing-,  to  raise  the  portions  immediately  after 
her  decease,  or  in  her  life-time  with  her  consent.  Slip  then  grant- 
ed a  lease  under  the  power.  The  question  was  whether  the  lease 
over-reached  the  term.  The  Court  were  of  opinion  that  it  didy 
If  they  were  to  hold  that  the  term  which  was  vested  in  the  trustees 
was  to  be  the  first  legal  estate  uncontrolled  by  any  other  matter, 

the  leasing  power  would  be  null  and  Aoid,  because  the 
[  *46  ]  person  in  whom  the  term  was  vested  *might  then  at  any 

time  turn  out  the  lessees.  In  order  to  avoid  that  incon- 
venience, and  to  give  effect  at  the  same  time  to  the  whole  import  of 
the  instrument,  the  leasing  power  mutit  be  considered  as  controll- 
ing and  superseding  the  term,  which  ought  not  to  have  effect  until 
the  period  when  the  trustees  call  that  term  into  action.  When 
they  have  called  that  term  into  action  the  leasing  power  would  be 
put  an  end  to,(.r)  but  until  that  ha  done  the  term  must  be  con- 
sidered as  subservient  to  the  leasing  power. 

32.  Upon  the  subject  wc  have  been  discussing,  Mr.  Butler,  in 
one  of  his  notes  on  Co.  Litt.,(2/)  observes  that  it  often  happens 
that  the  same  deed  contains  several  powers,  and  supposing  all  or 
even  more  than  one  of  them  to  be  executed,  there  is  at  least 
ground  to  argue  that,  generally  speaking,  the  use  limited  by  the 
power  last  executed  will  take  place  of  all  the  uses  created  by  the 
powers  previously  executed,  unless  the  contrary  is  expressed  or 

(u)  9  Barn.  &  Cress.  288.  These  appear  to  be  the  facts,  but  the  case  is  not  accu- 
rately stated  in  the  Ileport. 

(x)   Qu.  and  consider  the  point. 

(y)  271  b.  III.  4.  ' 


PRIORITY   OP   APPOINTMENTS.  43 

implied  in  the  deed.  Ho  then  refers  to  the  passage  in  Moore, 
and  adds,  that  it  is  to  he  observed  that  where  a  power  is  exer- 
cised for  a  vahiable  consideration,  in  such  a  manner  as  shows  it 
to  be  the  intention  and  agreement  of  the  parties  that  the  use 
created  under  it  should  not  be  over-reached  by  the  execution  of 
another  power,  it  is  contrary  to  equity  that  it  should  he  thus 
over-reached  ;  and  consequently  the  unexecuted  powers  may  be 
so  far  affected  both  at  law  and  in  equity,  as  to  be  subject  to  the 
use  created  under  the  executed  power.  To  avoid  all  disputes 
upon  these  heads,  he  recommends  provisions  in  settlements,  de- 
claring, where  there  is  no  contrary  intention,  1,  that  all  the  powers 
of  charging  with  money  should  be  subject  to  the  provisions  for 
the  wife  and  children  ;  2.  that  none  of  the  uses  should  be  ex- 
empted from  the  exercise  of  the  powers  of  sale  and  exchange,  ex- 
cept the  leases,  and  that  the  provisions  for  the  wife  and  children 
should  be  subject  to  the  leases  ;  3,  that  the  powers  of 
sale  and  exchange  should  be  subject  to  mortgages  *pre-  [  "47  ] 
viously  made,  but  may  be  exercised  with  the  con'seut  of 
the  mortgagees. 

The  rule,  we  have  seen,  depends  principally  upon  the  nature  of 
the  powers.  The  proposed  declarations  only  perform  the  office  of 
the  law. 

33.  Mr.  Sanders  on  the  same  suljcct  lias  observed(2:)  that  so 
early  as  the  time  of  Bridgemau's  practice  a  doubt  seems  to  have 
prevailed  as  to  the  priority  and  effect  of  poAVcrs  of  the  above  kind, 
with  reference  to  each  other,  when  contained  in  the  same  settle- 
ment ;  and  he  (Bridgeman)  therefore  introduced  a  clause  in 
settlements,  declaring,  "  that  every  of  the  said  jointures,  leases, 
grants,  limitations  and  estates,  shall  take  effect  and  stand  good^ 
according  as  the  said  jointures,  &c.  shall  in  priority  of  time  be 
made  one  before  the  other,  by  force  of  any  of  the  powers  afore- 
said." The  qualifications,  however,  as  far  as  he  had  been  able  to 
ascertain,  appeared  to  have  been  subsequently  omitted  in  most 
approved  forms,  thereby  leaving  the  effect  of  the  powers  to  the 
construction  of  law  ;  Imt  of  late  years  it  had  not  been  unusual  to 
insert  a  i)roviso,  declaring,  1st.  that  the  power  of  leasing  shall 
take  precedence  of  the  power  of  selling  and  exchanging,  unless 

(z)  Uses,  Yol.  1,  p.  1G4. 


44  SUGDEN   ON   P0WKR3. 

cxcciitetl  suliscqucntly  to  it  in  point  of  (iiiic! ;  2(lly,  that  the  power 
of  selling  Jind  exchanging  shall  over-rcaeli  every  othei"  j)0\ver,  al- 
though subsequently  exercised  in  point  of  time  ;  and,  odly,  that 
ill  all  other  eases  the  powers  shall  take  eflect  according  to  the 
execution  of  them  in  priority  of  time,  lie  then  states  his  opinion 
that  any  explanatory  declaration  is  neither  necessary  nor  proper. 

Admitting  the  jiropriety  of  expressly  declaring  the  intention 
of  the  })arties,  both  of  the  qualifications  above  noticed,  he  adds, 
are  imj)crfcct  and  erroneous ;  in  which  observation  he  appears  to 
be  perfectly  correct.  The  following  plan  appeared  to  him  less 
objectionable  ;  in  the  power  of  sale  the  releasees  or  the  tenant 
I'or  life  may  be  empowered  to  revoke  the  uses  limited  by 
[  *48  ]  the  settlement,  and  which  may  be*limited  *l)y  the  exer- 
cise of  any  of  the  powers  therein  contained,  except  any 
lease  made  under  the  power  of  leasing,  and  sulyect  and  without 
prejudice  to  any  sale  or  mortgage  which  shall  then  have  been 
actually  made  in  consequence  of  the  exercise  of  any  of  the 
powers :  and  in  the  power  authorizing  the  tenant  for  life  to 
charge  for  younger  children's  portions,  it  should  be  expressly 
stated  that  the  charge  made  under  the  power  should  be  subject  to 
the  jointure  limited  by  virtue  of  the  power  of  jointuring  reserved 
to  the  same  tenant. 

To  this  there  can  be  no  objection,  but  the  general  practice  has 
been  to  leave  it  to  the  law  to  declare  how  the  ai>poiutnient  under 
the  powers  should  operate  ;  and  as  we  have  already  seen,  it  is 
seldom  that  any  real  difficulty  can  arise  in  establishing  their 
priorities. 


34.  In  considering  what  powers  may  be  reserved  by  a  donee 
of  a  power,  at  the  time  he  executes  the  original  power,  we  were 
led  to  examine  the  eflfect  of  a  bare  revocation  under  a  })ower  to 
revoke  so  reserved.  But  we  have  still  to  consider  the  cft'ect  of 
partial  and  repeated  executions  of  powers  to  revoke,  and  limit 
new  uses  upon  the  estates  previously  created  ;  that  is,  which  of 
the  previous  estates  remain  capable  of  taking  effect. 

35.  The  leading  case .  of  Adams  v.  Adams  (a)  requires  a  full 

(a)  Cowp.  651.    There  is  no  marginal  abstract  of  the  case. 


REVOCATIONS    AND   NEW   APPOINTMENTS.  45 

investigation,  in  order  to  ascertain  what  it  decided.     The  report 
requires  some  application  to  comprehend  it. 

By  a  settlement  of  3d  Nov.  1758,  an  undivided  moiety  of  an 
estate  was  conveyed  to  such  uses  as  Mr.   and  Mrs.  Adams  should 
jointly  appoint,  and  in  default  of  appointment,  to  him  for  life, 
remainder  to  her  for  life,  with  a  limitation  to  a  trustee  to  preserve 
contingent  remainders,  remainder  to  such  child  or  children   of 
them  as  they  or  the  survivor  should  appoint,  and  in  default  of 
such  a})pointment,  to  their  first  and  other  sons  successively  in  tail, 
remainder  to  their  daughters  as  tenants  in  common  in 
tail,  remainder  to  such  *uses  as  Mrs.  Adams  should  ap-  [  *-i9  ] 
point,  and  in  default  of  such  appointment,  to  her  right 
heirs.  « 

By  a  joint  appointment  of  the  29th  Xov.  1758,  Mr.  and 
Mrs.  Adams  appointed  their  moiety  to  him  for  life,  remainder  to 
her  for  life,  with  a  limitation  to  trustees  to  preserve  contnigent 
remainders,  remainder  to  such  child  or  children  of  them  as  they 
or  the  survivor  should  appoint,  and  in  default  of  such  appoint- 
ment, to  all  such  children  living  at  the  death  of  the  survivor  of 
them,  as  tenants  in  common  in  tail,  with  cross  remainders 
amongst  them,  remainder  to  Mr.  and  Mrs.  Adams  and  the  sur- 
vivor, and  the  heirs  and  assigns  '  of  the  survivor,  and  with  a 
power  to  them  jointly  to  revoke  the  uses,  and  limit  new  ones. 

By  an  agreement  of  the  21th  Sept.  1761,  between  Mr.  and 
Mrs,  Adams  and  the  owners  of  the  other  moiety,  it  was  agreed 
that  certain  of  the  entire  estates  should  be  conveyed  to  the  uses 
of  the  3d  Nov.  1758,  the  subsequent  appointment  not  being 
noticed. (I) 

*By  a  deed  of  the  20th  Oct.  1764,  which  recited  the  settlement 
of  the  3d  Nov.  1758,  but  not  the  subsequent  appointment,  the 
owners  of  the  other  moiety  accordingly  conveyed  it  to  certain 
uses,  being  the  same  uses  as  were  declared  by  the  settlement  of 
the  3d  Nov.  1758,  of  the  moiety  thereby  settled. 

'Mr.  A(hims  died,  leaving  his  wife,  and  a  eon  and  two  daughters 
])y  her. 

By  a  deed  of  4  July,  1767,  which  recited  the  settlement  of  the 
3d  Nov.  1758,  and  the  deed  of  tlie  20th  Oct.  1764,  and  also  that 

(I)  It  13  not  stated  whether  this  agreement  was  executed  in  the  manner  required 
hy  the  power,  or  not 


46  SUGDEN    ON   POWERS. 

by  the  deed  of  the  29th  Nov.  1758,  the  estate  there  stood  limited 
to  the  uses  therein  mentioned,  and  tliat  no  other  appointment  had 
been  executed  ;  Mrs.  Adams  appointed  both  of  the  moieties  to 
her  two  daughters  for  500  years,  redeemable  by  tlie  son 
[  *50  ]  upon  payment  to  the  daughters  of  *3,000/.  each,  re- 
mainder to  the  son  in  fee,  with  a  power  to  her  to  revoke 
and  limit  new  uses. 

By  a  deed  of  25  Oct.  1771,  which  recited  all  tlie  deeds,  Mrs. 
Adams  appointed  one  moiety  to  her  daughter  Mary  for  life,  re- 
mainder to  her  children  in  strict  settlement,  with  like  remainders 
to  her  other  daughter  and  her  children ;  and  she  appointed  the 
other  moiety  to  her  other  daughter  for  life,  with  remainder  to  her 
children  in  strict  settlement,  with  like  r(?niainders  to  her  first- 
mentioned  daughter  and  her  children,  with  a  like  power  of  revo- 
cation and  new  appointment  to  herself,  which  she  did  pot  exer- 
cise. 

The  question  was,  Avhat  estate  did  the  son  take  ?  He  desired 
to  set  up  the  appointment  of  July,  1767.  It  was  agreed  that  the 
appointment  of  1771  was  void  pro  tanto  as  an  excessive  execu- 
tion— grandchildren  not  lacing  within  the  power.  It  was  con- 
tended tliat  tlio  son  either  took  the  fee  under  the  appointment  of 
1707,  or  that  he  took  an  estate  tail  subject  to  the  life  estates  of 
his  sisters  ;  which  latter  point  was  supported  on  the  ground,  that 
the  deed  of  29  Nov.  1758  was  revoked  by  the  agreement  of  Sept. 
1764,  and  that  by  that  agreement  and  the  deed  of  20  Oct.  1764, 
the  first  deed  of  3  Nov.  1758  was  revived. 

The  Court  were  of  opinion:  1,  that  the  deed  of  the  29th  of 
Nov.  1758  was  revoked  by  the  subsequent  instruments  of  Sept- 
and  Oct.  1764. 

2.  That  the  appointment  of  4  July,  1767,  was  revoked  by  the 
deed  of  25  Oct.  1771. 

3.  That  the  appointment  by  the  last  deed  to  the  grandchildren 
was  bad. 

Therefore  as  there  was  no  [valid]  appointment  of  the  inherit 
ance,  that  the  son  took  an  estate  tail  subject  to  his  sisters'  life 
estates,  with  remainders  over,  under  the  deeds  of  24  Sept.  and 
the  20th  Oct.  1764  ;  and  which  limitations  seemed  agreeable  to 
the  intention  of  the  parties  when  they  executed  the  first  deed  of 
the  3d  Nov.  1758. 


REVOCATIONS   AND   NEW   APPOINTMENTS.  47 

*36.  Now  the  points  decided  by  this  important  case  [  *51  ] 
were, 

1.  That  the  agreement  (I)  and  deed  of  partition  operated  as  a 
constructive  revocation  of  the  appointment  of  the  29th  Nov.  1758  : 
neither  of  those  instruments  noticed  the  appointment,  and  the 
original  and  newly  acquired  moieties  were  both  limited  to  the 
uses  of  the  settlement  of  the  3d  Nov.  1758. 

2.  That  the  appointment  of  July,  1767,  to  the  son  in  fee,  sub- 
ject to  the  term  for  securing  portions  to  the  daughters,  was  abso- 
lutely revoked  by  the  appointment  of  1771,  although  the  latter 
deed  did  not  expressly  revoke  the  former  uses,  and  the  new  uses 
appointed  by  it,  beyond  the  life  estates  to  the  daughters,  were 
void.  • 

3.  That  subject  to  the  valid  appointment  to  the  daughters  for 
life,  the  estate  vested  in  the  son  in  tail,  according  to  tlie  uses  in 
the  settlement  of  3  Nov.  1758.  This  is  an  important  point. 
The  original  limitations  were  to  such  of  the  children  as  the  parents 
or  the  survivor  should  appoint,  and  in  default  of  appointment,  to 
the  first  afld  other  sons  in  tail,  &c.  The  uses  were  altered  by 
the  appointment  of  29  Nov.  1758,  and  in  default  of  appointment 
to  the  children,  the  estate  was  limited  to  all  the  children  who 
should  be  living  at  the  death  of  the  survivor  of  the  parents,  as 
tenants  in  common  in  tail.  That  appointment  was  held  to  be 
constructively  revoked  by  the  deeds  of  partition.  The  estate 
then  again  stood  limited,  in  default  of  appointment,  to  the  sons  in 
tail.  Mrs.  Adams,  however,  by  the  appointment  of  1767  appears 
to  have  recited  the  appointment  of  29  Nov.  1758,  as  an  existing- 
appointment,  but  limited  the  estate  to  the  son  in  fee,  subject  to 
the  daughters'  portions.  By  the  last  appointment  she  newly  ap- 
pomted  the  estate,  and  as  the  new  uses  were  partially  bad,  the 
question  was  to  what  uses  the  estate  should  go,  subject  to  the  valid 
uses.  The  recognition  by  Mrs.  Adams  of  the  appoint- 
ment *of  1758  was  held  not  to  revive  it,  and  as  the  [  *52  ] 
appointment   of  1767  was   held  to  be  wholly  revoked, 

the  uses  of  the  .original  settlement  of  1758,  as  established  by 
the  partition  deeds,  was  held  to  be  operative.  It  was  a  question 
of  great  nicety.  The  uses  of  the  deed  of  3  Nov.  1758  were  re- 
voked by  the  appointment  of  the  29th  Nov.  1758  ;  the  latter  was 

(I)  But  qu.  ■whether  the  agreement  was  executed  in  the  manner  required  by  the 
power. 


48  SUGDEN   ON   POWERS. 

in  its  turn  revoked  l)y  the  deeds  of  ])<artition,  Avliicli  were  re- 
voked by  the  aj)})oinnieiit  of  1T<)7,  and  the  latter  was  revoked  by 
the  appointment  of  1771  ;  yet  to  the  extent  of  tlie  invalidity  of 
the  latter,  the  uses  of  the  ])artition  deeds  were  held  to  Vie  the  sub- 
sisting ones.  The  jwint  of  law  deeided  a])pears  to  be  that  if  tliere 
arc  several  appointments  under  a  power  in  a  settlement,  which 
afb  successively  revoked,  the  estate,  as  far  as  it  is  not  well  ap- 
pointed, will  go  to  the  uses  declared  by  the  original  settlement  in 
default  of  ajipointment.  For  although  the  original  settlement 
had  been  altered  by  the  first  appointment,  the  latter  was  restored 
by  the  second,  viz.  the  partition  deeds ;  and  although  those  uses 
had  been  altered  l)y  the  appointment  of  1707,  that  ajipointment 
had  been   removed  out  of  the  way  by  the  appointment  of  1771. 

This  decision  should  not  be  confounded  with  the  cases  where 
there  is  no  power  to  limit  new  uses.  Here  there  was  a  full 
power  but  it  was  to  a  certain  extent  badly  executed. 

37.  In  Brudenell  v.  Elwes(/>)  the  estate  was  settled  on  the 
husband  for  life,  remainder  to  the  wife  for  life,  remainder  to  the 
children,  as  the  husband  and  wife  or  the  survivor  shoufd  appoint ; 
and  in  default  of  appointment,  to  the  first  and  other  sons  succes- 
sively in  tail  male  ;  remainder  to  the  husband's  right  heirs.  By 
a  joint  api)ointment,  a  portion  of  the  estate  was  appointed  to  a 
daughter  in  fee  to  raise  1,000/.  for  one  of  the  sons,  with  a  power 
of  revocation  and  new  apjiointmcnt  in  the  husband  and  wife,  and 
the  survivor,  amongst  the  children.  The  wife,  who  sur- 
[  *53  ]  vived,  revoked  the  appointment  to  the  daughter  (*but 
without  prejudice  to  the  payment  of  the  1,000/.),  and 
appointed  new  uses,  some  of  which  were  void,  as  not  being  au- 
thorized by  the  power :  and  it  was  decided,  that  subject  to  the 
estates  well  created  l^y  that  appointment — being  successive  life 
estates  to  the  daughter  and  one  of  the  sons — the  estate  went,  as 
in  default  of  appointment,  according  to  the  directions  of  the  ori- 
ginal settlement,  viz.  to  the  sons  successively  in  tail  male,  re- 
mainder to  the  right  heirs  of  the  father.  The  revocation  there- 
fore was  held  to  be  al)solute,  although  the  a})[)ointment  was  only 
partially  valid. (1)  The  Master  was  of  a  contrary  opinion;  but 
(6)  1  East,  442;  7  Vea.  Jun.  382. 


(1)  Cutter  T.  Doughty,  23  Wend.  R.  522;  Ruth  v.  Rutherford,  1  Bailey'a  Eq.  Rep. 
17;  Mowatt  v.  Carrow,  7  Paige  R.  328;  Phillips  v.  Beall,  9  Dana's  R.  1. 


REVOCATIONS   AND   NEW   APPOINTMENTS.  49 

the  Court  of  King's  Bench  certified  in  favour  of  a  total  revocation, 
and  the  Lord  Chancellor  adopted  their  certificate. 

38.  We  have  already  seen  that  some  of  the  parties  entitled 
under  a  settlement  may  (subject  to  the  rights  of  others)  settle 
their  interest  and  create  new  powers,  and  exercise  them,  and 
create  a  new  settlement  with  even  powers  of  sale  and  excliauge, 
and  yet  such  new  settlement  will  not,  contrary  to  their  intention, 
defeat  the  power  of  sale  and  exchange  in  the  original  settlement. 
The  latter  tlicrcfore  may  still  be  exercised  so  as  to  defeat  all  the 
remaining  uses  of  the  original  settlement,  and  all  the  uses  and 
powers  subsequently  created.  If  it  is  not  exercised,  the  ne.w 
settlement  in  its  turn  will  have  its  operation  over  the  estate  in 
possession. (c) 

39.  In  Phelp  v.  Hay((Z)  a  woman  having  a  power  to  appoint 
an  estate  for  the  use  and  benefit  of  herself  and  her  husband,  and 
the  issue  of  their  two  bodies,  in  such  manner,  &c.  as  she  should 
appoint,  and  having  appointed  it  to  her  husband  and  herself  for 
life,  she,  by  a  further  deed,  after  the  death  of  her  husband,  ap- 

^      pointed  the  estate  to  herself  for  life,  remainder  to  the  use  of  her 

three  children,  Charles,  James,  and  Jane,  or  to  any  or  eitlicr  of 

_^    them,  their,  his,  or  her  heirs  and  assigns,  in  such  manner,  propor- 

,  tions,  &c.  as  she  should  by  deed  or  will  a|»point,  and  in 
Y\  default  of  such  *appointment,  to  the  use  of  Charles,  [  *o4  ] 
\\  I  James,  and  Jane,  as  tenants  in  common  in  fee.  Charles 
^>»<(^  died  under  age  ^nthout  issue.  I>y  her  will,  in  exercise  of  the 
power,  she  appointed  2,000/.  for  her  daughter,  and  the  estate, 
subject  thereto,  to  James  (as  it  was  held)  in  tail,  remainder  to 
Jane  in  tail,  remainder  to  her  (the  testatrix's)  mother  for  life, 
with  remainder  to  her  own  right  heirs.  The  Court  held  that  all 
the  uses  were  void  beyond  the  estate  tail  to  the  daughter,  and 
that  no  valid  appointment  of  the  reversion  in  fee  having  been  made 
the  former  appointment  did,  as  to  such  reversion  in  fee,  become 
absolute,  and  that  under  sucli  appointment  the  reversion  in  fee 
belonged  to  her  three  children,  as  tenants  in  common  in  fee. 
Here,  it  will  be  observed,  by  the  first  a])pointmcnt  the  estate  was 
subject  to  a  power  limited  to  her,  settled  on  the  three  sons  in  fee, 
and  that  fee  still  took  effect  as  far  as  the  new  power  was  not  well 

(c)  Roper  &  Halifax,  supra,  and  Appendix  3.  (J)  App.  No.  15. 

Vol.  II.  6 


50 


SUGDEN  ON  POWERS , 


executed.  In  Adams  v.  Adams  the  estate  was  appointed  to  the 
children,  with  a  power  of  revocation  and  new  appointment,  and 
the  new  appointment  made,  although  i)artially  bad,  was  held  to 
amount  to  a  total  revocation  of  the  hrst  appointment.  We  have 
already  had  occasion  to  consider  the  distinction  hctween  a  power 
to  appoint  with  limitations  until  and  in  dclault  of  appointment, 
atid  an  immediate  settlomont  to  uses  not  ])rcccdcd  l)y  any  power, 
but  subject  to  a  power  of  revocation  and  new  appointment. 

40.  We  may  here  finally  observe,  that  a  revocation,  although 
confined  in  expression  to  a  particular  interest,  may  upon  the  con- 
text be  held  to  be  altogether  a  suljstitute,  so  as  wholly  to  revoke 
the  former  settlement,  (e) 


[•55] 


CHAPTER  IX. 


OF  THE   EFFECT   OF   AN   EXCESSIVE  EXECUTION. 


SECTION  IX. 


OF  EXCESS   IN   THE   OBJECTS, 


3.  General  intent  in  a  will  prevails  over 

particular  intent. 

4.  Applies  to  powers. 

5.  Cy-pres  doctrine:  Gift  to  child  for  life, 

remainder  to  his  children  in  tail  (not 

objects),  estate  tail  in  cliild. 

Does  not  apply  where  all  the  issue  not 

intended  to  take. 

Nor  to  personalty. 
12.  And  confined  to  wills. 
34.  Limitations  to  oVijects  good. 
28.  Though  with  void  remainders. 

15.  Rule  wliere  the  fund  is   given  to  ob- 
jects and  to  persons  not  objects. 

16.  If  some  not  within  the  line  of  perpe- 
tuity, void  as  to  all. 

20.  Contra  if  given  partly  to  strangers, 
and  excess  can  be  ascertained. 


10. 
11. 


21.  Void  gift  prevents  valid  gift  over  froiE 
taliing  ett'ect. 

24.  Doe  V.  Lord  Geo.  Cavendish  overruled. 

25.  Robinson  v.  Hardcastle. 
2b.  Brudenell  v.  Elwes. 

27.  Two  alternatives,  one  good  may  ope- 
rate though  the  other  bad. 

20.  Remainder  good  after  void  gift  for  life 
to  a  stranger. 

30.  Power  delegated  bad,  but  a  gift  to  ob- 
jects in  default  of  appointment  valid. 

31.  Unless  power  is  to  be  exercised  for 
strangers. 

32.  Appointment  to  an  object  good  and 
subsequent  direction  bad. 

33.  Where  appointment  to  a  stranger  for 
the  object  is  void. 


1.  There  are  three  modes  in  which  a  power  may  be  exceeded  : 
First,  in  the  objects,  as  where  a  power  to  appoint  to  children  or 


(e)  Angell  v.  Dawson,  3  You.  &  Coll.  308. 


EFFECT   OP   AN    EXCESSIVE   EXECUTION.  51 

nephews  is  exercised  in  favour  of  graiidchildreu  or  great  nephews. 
2ndl7,  in  the  interests  given,  as  where  under  a  power  of  leasing 
for  twenty-one  years,  a  lease  is  granted  for  twenty-two  years. 
3dly,  In  conditions  annexed  to  the  gift,  as  where  the  fund 
is  given  on  condition  that  the  appointee  pay  a  *particular  [  *o6  ] 
debt.  2.  We  have  already  had  occasion  to  treat  of 
what  amounts  to  an  excessive  execution  of  a  power,  and  we  have 
now  only  to  consider  the  effect  of  the  excess. 

3.  And  first,  Where  the  power  is  exercised  in  favour  of  per- 
sons not  objects  of  the  poiver.  It  hath  before  been  observed,  that 
a  will  made  in  execution  of  a  power  must  receive  exactly  the 
same  construction  as  a  proper  will.  Xow  it  is  a  rule  of  law,  that 
where  a  testator  has  two  objects,  one  particular,  and  the  other 
general,  and  the  particular  intent  cannot  be  effected  unless  at  the 
expense  of  the  general  one,  the  latter  shall  be  carried  into  effect 
at  the  expense  of  the  former.  This  is  the  case  where  a  man  gives 
an  estate  to  one  for  life,  with  remainder  to  his  issue,  but  the  estate 
is  so  given  that  all  the  issue  cannot  take  unless  through  their 
parent.  The  particular  intent  is,  that  the  parent  sliall  take  only 
for  life  ;  the  general  intent  is,  that  all  the  issue  take  :  and  in  these 
cases  the  Court  will  effectuate  the  general,  at  the  expense  of  the 
particular  intent,  by  giving  the  parent  an  estate  tail. (I) 

4.  This  doctrine  applies  with  equal  force  to  similar  limitations 
in  wills  executed  under  powers.  An  important  question  has 
arisen  in  relation  to  it,  upon  which  the  Judges  have  been  much 
divided  in  opinion.  The  question  is,  whether,  under  a  power  to 
appoint  to  children,  an  appointment  to  a  child  for  life, 
remainder  to  his  children,  *ivho  are  incapable  of  taking-,  [  *57  ] 
.shall  give  the  child  himself  an  estate  tail  in  order  to 

effect  the  general  intent. 

(I)  This  doctrine  appears  to  have  been  carried  too  far.  And  it  is  established,  that 
where  there  is  only  a  single  intent  to  create  a  perpetuity,  and  not  a  particular  and 
general  intent,  the  Court  cannot  enlarge  the  limitation:  Thus,  where  there  was  a  de- 
vise to  A.  for  life,  and  after  him  to  his  eldest  or  any  other  son,  during  his  life,  and 
after  them  to  as  many  of  his  descendants,  issue  male,  as  should  be  heirs  of  his  or 
their  bodies  down  to  the  tenth  generation,  during  their  lives,  it  was  determined  that 
A.  took  for  life  only.  Sewar.l  v.  Willock,  5  East,  198;  Somerville  v.  Lcthbridge,  6 
Term  Rep.  213;  and  see  White  v.  Collins,  Com.  298;  Doe  and  Goff,  11  East,  G68;  but 
where  the  devise  amounts  simply  to  an  executory  trust,  a  court  of  equity  may  effectu- 
ate the  intention.  See  Humbcrston  v.  Ilumberston,  Prec.  Cha.  455;  1  P.  Wms.  333; 
2  vol.  Ca.  and  Opin.  417;  but  Doc  and  Goflf  was  denied  to  be  law  in  the  late  case  of 
Doe  v.  Jcsson ,  in  Dom.  Proc. 


52  SUGDEN  ON   POWERS. 

5.  Tills  point  first  arose  in  a  case,  were  money  was  directed  to 
be  laid  out  in  land,  to  be  settled,  after  the  deatli  of  the  husband 
and  wife,  to  the  children  of  tlie  marriage,  as  the  father  by  deed 
or  will  should  npjjoint.  The  AUhcr,  by  his  will,  directed  part  of 
the  fund  to  be  laid  out  iu  real  estate,  to  lie  conveyed  to  the  use  of 
his  daughter,  during  her  life,  for  her  separate  use,  remainder  to 
all  and  every  the  cliild  and  children  of  his  daughter,  as  tenants 
in  conunon.  Lord  Kenyon,  then  Master  of  the  Rolls,  determined, 
that  in  order  to  eftcctuate  the  testator's  general  intention,  the 
daughter  nnist  be  considered  as  taking  an  estate-tail. (a) 

6,  In  the  case  of  Griffith  v.  Harrison, (6)  where  the  devise  was 
to  the  wife  for  life,  with  an  exclusive  power  of  appointing  by  will 
to  the  children,  but  so  as  the  estate  should  not  be  divided,  but 
transmitted  entire  to  his  heirs,  the  wife  by  will,  gave  the  estate 
to  one  of  her  sons  for  life,  remainder  over  to  his  children  in  strict 
settlement,  and  so  to  her  other  children  and  their  children  succes- 
sively in  like  manner ;  the  Judges  of  the  Court  of  King's  Bench 
were  divided  in  opinion  upon  the  operation  of  the  will  creating 
the  power.  Lord  Kenyon,  and  Grose,  J.  agreed  that  there  was 
an  excess  in  the  execution  of  the  power;  1)ut  they  certified,. that 
althougli  tlie  appointment  could  not,  as  they  conceived,  take  effect 
in  the  particular  manner  the  widow  intended,  yet  her  general 
intention  being  that  the  children  of  her  several  children  should 
take  estates  of  inheritance  in  tail  general,  on  the  death  of  their 
respective  parents,  they  thought  that  that  general  intention  should 
be  carried  into  execution  as  far  as  the  power  given  by  the  husband 

would  allow;  and,  consequently,  that  the  children  re- 
[  *58  ]  spcctivcly  took  estates  in  *tail  general.  This  construc- 
tion they  thought  fairly  warranted  by  great  authorities. 
This  oj)inion,  we  must  perceive,  accords  ]>recisely  with  Lord 
Kenyon's  decision  in  Pitt  v.  Jackson.  The  other  two  Judges, 
Ashurst  and  Buller,  did  not  deliver  any  opinion  on  this  point,  for 
they  thought,  on  the  authority  of  tlie  Duke  of  Devonshire  v. 
Cavendish, (c)  that  the  power  authorized  a  limitation  in  strict 
settlement ;  but,  if  it  did  not,  then  they  thought  that  it  authorized 

(a)  Pitt  V.  Jackson,  2  Bro.  C.  C.  51.  See  Phelp  v.  Ilay,  App.  No.  15,  but  note, 
there  the  devise  was  to  issue  wliich  may  be  considered  a  word  of  limitation;  Vander- 
plank  V.  King,  3  Hare,  1. 

(6)  4  Term  Rep.  737. 

(c)  Vide  infra,  p.  G8. 


OF   THE   DOCTRINE   OF   CY-PRES.  6S 

a  limitation  to  tlio  children  during  llieir  lives  oiil}'.  In  a  prior 
case,  liowcvcr,  Mr.  Justice  Buller  appears  to  have  entirely  agreed 
with  Lord  Keuyon's  opinion  in  Pitt  and  Jackson.  (<i)  ■ 

The  case  of  Griffith  v.  Harrison  arose  upon  a  case  sent  out  of 
the  Court  of  Chancery ;  and  upon  the  first  hearing  the  Lord 
Chancellor  seemed  to  think  that  it  was  not  an  estate  tail.(e)  It 
does  not  appear  what  ultimately  became  of  the  case ;  but,  as  it 
was  a  bill  filed  against  the  purchaser  for  a  specific  performance, 
the  bill  was  no  doubt  dismissed  in  consequence  of  the  different 
opinions  of  the  Judges,  a  purchaser  not  being  compellable  to 
accept  a  doubtful  title. 

7.  In  Routledge  v.  Dorril,(/)  Lord  Alvanley  said  that  he  sub- 
scribed to  the  case  of  Pitt  v.  Jackson,  as  far  as  it  ivas  decided, 
with  regard  to  real  estate  settled  to  a  person  ivho  was  an  object 
of  the  power  for  life,  ivith  limitations  in  strict  settlement  to  per- 
sons 7iot  objects  of  the  povjer,  for  that  was  decided  in  Humberston 
V.  Humberston,(o')  and  Spencer  v.  Duke  of  Marlborough. (A) 
Pitt  V.  Jackson  was,  he  said,  a  case  of  real  estate.  The  first  and 
other  sons  were  incapable  of  taking  as  purchasers.  Lord  Kenyon 
thought,  that  as  it  was  perfectly  clear  it  was  intended  to  go  to 
the  daughter  and  her  issue,  and  they  could  not  take  as  purchasers, 
to  effectuate  the  general  intention  of  the  testator,  it  should  be  so 
moulded,  and  he  relied  upon  Chapman  v.  Brown,  (z) 
•There,  according  to  the  report,  Lord  Mansfield  laid  [  *o9  ] 
down  that  doctrine,  and  he  (Lord  Alvanley)  did  not  find 

much  oltjection  to  it,  viz.  that  ivhere  there  is  a  limitation  for  life, 
to  a  person  unborn,  ivith  remainder  in  tail  to  the  first  and  other 
sons,  as  they  cannot  take  as  purchasers,  but  may  as  heirs  of  the 
body,  and.  as  the  estate  is  clearly  intended  to  go  in  a  course  of 
descent,  it  shall  be  construed  an  estate-tail  in  the  person  to^vhom 
it  is  given  for  life. 

8.  In  a  case  which  occurred  nearly  sixteen  years  after  Pitt  v. 
Jackson,  Lord  Kenyon  said,  that  perhaps  no  case  had  carried  the 

{(I)  See  Robinson  v.  Hardcastle,  2  Term  Rep.  254. 

(c)  3  Bro.  C.  C.  410. 

(/)  2  Ves.jun.  3G4. 

(g)  1  P.  Wms.  332. 

(A)  5  Bro.  P.  C.  5'J2. 

(0  3  Burr.  1626. 

5* 


54  SUGDEN   ON   POWERS. 

doctrine  farther  than  he  did  in  Pitt  v.  Jackson,  and  he  knew  that 
great  Judges  entertained  considerable  scruples  at  the  time  con- 
cerning that  decision.  It  went  indeed  to  the  outside  of  tlie  rules 
of  construction,  yet  still  he  did  not  tliink  it  was  wrong.(A;)  In 
Routlcdge  V.  Dorril,  Lord  Alvanlcy  said  that  he  knew  the  doc- 
trine in  Pitt  V.  Jackson  had  by  very  great  authorities  been  ques- 
tioned. Indeed,  althougli,  apparently,  the  fact  is  not  generally 
known,  the  case  of  Pitt  v.  Jackson  ultimately  met  with  no  decision. 
The  case  afterwards  came  on  to  be  heard  before  Lord  Rosslyn, 
and  it  then  appeared,  that  the  children,  in  default  of  appointment, 
were  to  take  estates-tail  mider  the  settlement.  And  the  Chancel- 
lor said,  that  under  the  circumstances,  and  if  the  necessity  of  the 
case  obliged  the  Court  to  consider  how  to  dispose  of  this  strange 
execution  of  the  power,  he  should  be  very  much  inclined  to  adopt 
the  idea  Lord  Keuyon  pursued ;  liut,  as  the  child  took  an  estate- 
tail  under  the  settlement,  lie  determined  that  the  appointment 
was  void  beyond  the  life  estate ;  therefore  there  was  only  this 
diflereucc,  that  under  the  original  settlement  she  would  have  an 
estate-tail  at  once,  and  in  this  way,  an  estate  for  life,  remainder 
to  herself  in  tail,  which  was  the  same,  for  her  life-estate  was 
moulded  in  it.(/) 

Mr  Justice  Buller,  in  a  later  case,  observed  that  the 
[  ''GO  ]  *grounds  on  which  the  Master  of  the  Rolls  seems  evi- 
dently to  have  gone  in  this  case  were  decisive,  although 
the  expression  attributed  to  him  in  the  report  was  not  accurately 
taken,  namely,  that  the  whole  appointment  to  Mary  Smith  by  the 
will  was  void,  and  yet  that  she  took  an  estate-tail  under  it.  That 
determination  must  have  been  on  this  principle,  that  when  there 
is  a  general  and  a  particular  intent,  and  the  particular  one  cannot 
take  efiect,  the  words  shall  be  so  construed  as  to  give  effect  to  the 
general  intent.  The  doctrine  of  cy  pres  goes  on  that  principle. 
The  Master  of  the  Rolls  grounded  his  opinion  on  the  case  of 
Chapman  v.  Brown,  where  the  Court  said  that  as  the  will  could 
not  operate  so  as  to  give  an  estate  for  life  to  the  unborn  son  of 
Reginald,  with  an  estate-tail  to  his  issue,  therefore  that  unborn 
son  should  take  an  estate-tail. (m) 

(/c)  Brudenell  v.  Elwes,  1  East,  451. 

{I)  Smith  V.  Lord  Camelford,  2  Ves.  jun.  698;  and  see  Bristow  v.  Warde,  2  Ves. 
jun.  33f.. 

(m)  2  Term  Rep.  254. 


OF   THE   DOCTRINE   OF   CY-PRES.  5o 

9.  This  doctrine  rested  on  high  authority.  Had  Lord  Kenyon 
been  Chancellor,  instead  of  Master  of  the  Rolls,  the  point  evi- 
dently Avould  have  l)een  decided ;  and,  paradoxical  as  it  may 
appear,  his  decision  at  the  Rolls,  although  reversed,  was  not  over- 
ruled. The  opinions,  too,  of  Mr.  Justice  Bullcr,  Mr.  Justice 
Grose,  Lord  Alvanlcy,  and  even  Lord  Rosslyn,  all  stand  in  favour 
of  Lord  Kenyon's  doctrine,  and  the  point  has  been  lately  decided 
in  Ireland  in  conformity  with  these  opmions  by  the  Chancellor  in 
a  case  not  yet  reported. 

10.  But  this  construction  will  not  prevail  unless  it  will  clearly 
efiectuate  the  testator's  general  intention.  Therefore,  in  a  case(w) 
where  the  estate  was  given  by  a  settlement  to  the  cliildren,  as  the 
father  should  appoint,  and  in  default  of  appointment,  to  them  as 
tenants  in  common  in  tail,  with  cross-remainders  in  tail,  and  the 
father  by  his  will  appointed  part  of  the  estate  to  one  of  his  sons, 
Henry,  for  life,  remainder  to  the  chihlrcn  of  Henry,  as  he  should 
appoint,  it  was  insisted  that  Henry  should  take  an  estate-tail ; 
and  Lord  Rosslyn  in  tlic  course  of  the  argument  asked 

why  he  could  not  put  that  construction  on  the  devise  ;  *to  [  *61  ] 
which  he  was  answered,  that  it  was  intended  that  the 
children  (of  Henry)  should  take  absolutely,  not  that  it  should  go 
as  an  estate-tail  would  carry  it.  It  was  said,  that  the  principle 
of  all  the  cases  for  an  implied  estate-tail  is,  that  there  was  a  clear 
indicium  of  an  intention  that  all  the  issues  should  take  in  the 
course  in  which  an  estate-tail  would  go,  but  that  inference  could 
be  drawTi  from  those  cases  to  tliis,  where  there  was  no  such  indi- 
cation. Lord  Rosslyn,  in  delivering  judgment,  adopted  these 
arguments.  He  said  that  the  case  of  Pitt  v.  Jackson  would  not 
enaljle  liim  to  do  the  same  thing  here,  for  here  it  was  a  power  to 
Henry  to  appoint  to  children  in  such  shares  as  he  thought  fit. 
No  estate-tail  was  given,  nor  was  any  intention  of  that  sort  ex- 
pressed ;  but  the  children  would  take  either  by  appointment,  or 
for  want  of  it,  distributively  pc?'  capita.  Therefore  that  did  not 
apply ;  and  he  was  under  the  necessity  of  saying  the  interests  to 
the  children  of  Henry  could  not  in  any  respect  take  cflect. 

11.  The  doctrine  of  cy  pres  does  not  apply  to  personalty.  (1) 

(n)  Bristow  v.  Warde,  2  Ves.  jun.  336. 


(1)  1  Story's  Eq.  Jur.  §  291;  2  Id.  §  1162-1172.  1176. 


56  SUGDEN  ON   POWERS. 

It  was  originally  introduced  in  favour  of  the  testator's  intention. 
If  it  wore  extended  to  i»ersoiial  estate,  it  would  defeat  the  intent, 
for  it  would  vest  the  ])ersonalty  in  the  executor,  and  not  in  the 
children  on  the  death  of  the  parent. (o) 

12.  And  the  rule  is  cxpi-essly  coniined  to  wills.  It  does  not 
extend  to  limitations  by  deed  only  of  either  real  or  personal  es- 
tate. In  Urudenell  v.  Elwes(/?)  Lord  Kenyon  himself  exj)ressly 
laid  it  down,  that  this  doctrine  of  c//;?reA-  went  to  the  utmost  verge 
of  the  law,  even  in'thc  construction  of  wills,  but  that  it  had  never 
been  applied  to  the  construction  of  deeds;  and  he  accordingly 
refused  to  extend  it  to  a  limitation  in  a  deed  executing  a  power. 
In  the  same  case.  Lord  Eldon  observed,  that  the  case  did  not 
come  near  Pitt  v.  Jackson,  and  the  other  cases  upon  wills  ;  first, 

as  they  were  cases  upon  wills,  not  deeds,  to  which  this 
[  *G2  ]  doctrine  *had  not  been  ai)plied  ;  secondly,  those  cases 

had  at  least  gone,  as  Lord  Kenyon  observed,  to  the  ut- 
most verge  of  the  law,  and  he  should  find  it  very  difficult  to  alter 
an  opinion  he  had  taken  up,  that  it  was  not  proper  to  go  one 
step  further,  for  in  those  cases,  in  order  to  serve  the  general  intent, 
and  the  particular  intent,  they  destroy  both.(^) 

13.  This  point  was  decided  in  the  earlier  case  of  Adams  v. 
Adams,(r)  where,  under  a  power  to  appoint  to  children,  the 
parent  appointed  by  deed  to  the  children  for  life,  remainder  to 
their  sons  in  tail,  remainder  to  their  daughters  in  tail ;  the  grand- 
children were — as  in  the  other  cases — not  objects  of  the  i)owcr  ; 
and  as  the  appointment  was  by  deed,  the  doctrine  of  cy  pres  was 
not  discussed  ;  and  Lord  Mansfield,  and  the  other  Judges  of  B.  R. 
certified  to  the  Lord  Chancellor,  by  whom  the  case  was  sent,  that 
the  power  was  exceeded  by  limiting  the  estates  to  the  grand- 
children, but  that  the  limitations  to  the  children  for  life  were 
good,  and  the  disposition  of  the   inheritance  to  their  children 

.  void.     Therefore,  as  there  was  no  appointment  of  the  inheritance 
of  the  premises,  the  estate  went  to  the  uses  declared  by  the  deed 


(o)  Routlcdge  V.  Dorril,  2  Ves.  jun.  3G4;  and  see  Knight  v.  Ellis,  2  Bro.  C.  C.  570; 
Keily  v.  Fowler,  Wilm.  298. 
(j))  1  East,  451. 
(g)  7  Ves.  jun.  390. 
(r)  Cowp.  651;  the  certificate  was  confirmed  27th  November,  1777. 


.     OF   THE   DOCTRINE   OP   CY-PRES.  57 

creating  the  power,  in  default  of  appointment,  subject  to  the  es- 
tates for  life  to  the  children. 

14.  Where  a  partial  interest  is  given  to  an  object  of  the  power 
with  remainders  to  persons  not  objects  of  it,  and  the  doctrine  of 
cy  prcs  cannot  be  applied,  yet  the  whole  appointment  will  not  be 
void,  but  merely  that  part  which  is  not  autliorizcd  by  the  power. 
This  rule  is  observed  as  well  at  law  as  in  equity.  The  point,  as 
we  have  incidentally  seen,  was  expressly  decided  at  law  in  Adams 
v.  Adams, (*•)  which  was  a  case  sent  out  of  the  Court  of  Chancery, 
where,  under  a  power  to  appoint  to  children  the  estate  was  given  to 
the  two  daughters  for  life,  in  moieties,  remainder  to  their 
children  in  strict  settlement.  The  Court  of  B.  R.  *certi-  [  *63  ] 
lied  that  though  they  were  of  opinion  that  the  donee  had 
exceeded  her  power,  which  was  confined  to  child  or  children,  by 
limiting  estates  to  her  grandchildren,  yet  they  thought  that  the 
same  ought  to  prevail  so  far  as  her  power  extended,  and  that  the 
limitation  to  her  daughters  for  life  was  good  ;  but  that  the  dis- 
position of  the  inheritance  to  their  child  or  cliildren  was  void.(^) 
As  Mr.  Justice  Buller  remarked,  in  a  later  case,  there  the  estate 
was  limited  to  daughters,  <fec.  in  being ;  and  it  is  material  to  con- 
sider how  the  estate  was  divided.  It  was  divided  into  moieties, 
one  moiety  to  one  daughter  for  life,  remainder  to  her  issue,  with 
cross-remainders.  The  Court  then  say  that  the  disposition  of  the 
inheritance  to  the  children  was  void,  but  that  the  estates  for  life 
were  good ;  that  is,  the  estates  for  life  to  each  of  the  sisters  in 
their  respective  moieties,  reddendo  singula  sing-ulis.(v')  By  a 
decree  made  in  the  cause  on  the  27th  November,  1777,  the  Lord 
Chancellor,  agreeing  with  the  certificate,  dismissing  the  plaintiff's 
bill.  The  same  decision  was  made  in  Equity  by  Lord  llossljTi 
in  the  case  of  Bristow  v,  Ward,(.x-)  although  it  was  contended, 
that  if  the  appointment  could  not  take  efi'cct  in  the  manner  the 
distribution  was  made  by  the  parent,  the  question  would  be, 
What  he  would  have  done  if  he  had  been  apprised  that,  part . 
failing,  there  would  arise  an  inequality  unforeseen  by  him  as  to 

(s)  Cowp.  f)51:  supra,  p.  48. 

(0  And  see  accordingly,  Brudencll  v.  Ehves,  1  East,  412;  7  Vcs.  jiin.  G82;  Phelp 
V.  Hay,  App.  No.  15. 

(u)  2  Term  Rep.  2ol. 

(j)  2  Vea.  33G;  and  see  Roberts  v.  Dixwell,  App.  No.  16,  the  appointment  over  of 
the  2,000/. 


58  SUGDEN   ON    POWERS. 

his  childrcu  ?  l]ut  Lord  llosslyu  said,  that  the  answer  was,  no- 
body could  tell  what  lie  would  have  douc  ;  but  tliat  was  not  a 
ground  for  setting  aside  the  whole ;  for  each  chiltl  to  whom  he 
had  well  appointed  had  a  right  to  claim  that. (yy) 

15.  But  there  is  infinitely  more  difficulty  where  the 
[  *G4:  ]  fund  is  given  generally  amongst  persons,  some  of  *whoni 
are  objects  of  the  ]iower,  and  some  not.  Tliis  was  one 
of  tlie  many  points  in  Alexander  v.  Alexander,(c)  wlicrc  under 
a  power  of  appointing  a  personal  fund  amongst  children,  the  wife 
gave  a  portion  of  it  to  trustees,  "  upon  trust  to  pay  the  interest 
thereof  weekly,  or  otherwise,  in  sucli  manner  as  the  trustees 
should  think  most  beneficial  for  the  personal  support  and  mainte- 
nance of  her  son  Francis,  and  his  ivife  and  children^  Sir 
Thomas  Clarke,  Master  of  the  Rolls,  first  held  that  the  discre- 
tionary power  to  the  trustees  was  void.  He  then  treated  the  case 
as  if  the  mother  had  given  it  herself  indefinitely  for  the  benefit 
of  Francis,  his  wife  and  children,  laying  the  discretionary  power 
out  of  the  case  as  if  never  inserted  in  the  will,  and  then  he  said, 
certainly  so  far  as  the  wife  and  children  were  to  have  the  benefit 
of  it,  tliat  would  not  be  good.  And  he  thought  that  this  apjioint- 
meut  would  not  be  considered  a  comi)lete  execution  as  to  Francis, 
for  the  wife  and  children  were  to  have  something,  and  there  was 
no  possibility  of  distinguishing  how  inucli  she  exceeded  her  power. 
He  then  proceeded  to  consider  whctlicr  there  Avas  any  other  way 
to  make  this  good ;  and  by  a  very  artificial  train  of  reasoning,  he 
came  to  the  conclusion,  that  Francis  might  take  the  whole  fund, 
and  decreed  accordingly.  His  argument  was  this :  "  I  own(a)  1 
incline  to  think  there  is  a  method  :  Suppose  the  mother,  instead 
of  using  the  words  she  has,  had  given  this  one-fourth  to  be  ap- 
plied in  such  way  as  was  most  beneficial  for  her  son,  and  his  wife 
and  children,  if  they  shall  by  laiv  be  capable  :  I  should  not  have 
doubted  l)ut  that  as  the  wife  and  children  are  not  by  law  capable, 
it  would  be  aljsolute  to  Francis  ;  and  the  question  is,  whether 
there  is  any  difference  ?     This  bears  an  analogy  to  what  the  dis- 

(y)  And  see  Routlerlge  v.  Dorril,  "2  Ves.  jun.  357;  Crompe  v.  Barrow,  4  Ves.  jun. 
681 ;  Smith  v.  Lord  Camelford,  2  Ves.  jun.  608. 

(z)  2  Ves.  G40;  and  see  2  Myl.  &  Cra,  251;  Martin  v.  Swannell,  2  Beav,  240; 
Crozier  v.  Crozicr,  3  Dru.  &  War,  353. 

(a)  2  Ves.  645. 


APPOINTMENTS   INCLUDING  STRANGEES.  59 

positions  by  the  mother  "vroiild  be,  if  she  had  given  it  to  a  son  by 
name  who  never  appeared  to  have  existence,  or  was  never 
capable  of  taking ;  if  *given  to  these  four  indefinitely,  [  *65  ] 
and  three  were  incapable  of  taking,  the  fourth  would 
have  the  whole  ;  he  must  take  such  as  the  others  were  incapable 
of  taking.  It  falls  within  the  reason  of  the  late  case  of  Hum- 
phrey V.  Taylour,(Z>)  where  a  personal  estate  was  given  to  two  in 
joint-tenancy  ;  one  was  outlawed  ;  and  therefore  the  testatrix 
made  a  codicil,  whereby  she  adeemed  what  was  given  to  one  of 
the  two  ;  the  question  was,  whether  the  other  joint-tenant  should 
take  only  a  moiety  ?  But  the  Court  held  he  was  to  take  what 
the  other  did  not ;  they  were  to  take  the  whole  between  them. 
The  mother  never  designed  this  fourth  part  should  fall  into  the 
residue,  and  it  would  be  extremely  hard  that  it  should.  Then  he 
will  be  entitled  to  the  whole  of  that. "(c) 

16.  The  foregoing  reasoning  is  not  satisfactory  ;  and  it  cannot 
be  considered  clear  that  a  similar  case  would  now  receive  a  simi- 
lar decision.  At  least,  it  is  well  settled  by  later  determinations 
that  a  gift  under  a  power,  embracing  objects  not  within  the  line 
of  perpetuity,  is  wholly  void,  and  the  fund  cannot  be  given  to 
those  to  whom  it  might  have  been  legally  appointed. 

17.  Thus  in  Gee  v.  Audley,((/)  there  was  an  appointment  by 
will  of  1,000/.  in  default  of  issue  of  Mary  Hall,  equally  to  be 
divided  between  the  daughters  then  living  of  John  Gee  and  Eliza- 
Ijeth  his  wife  ;  and  if  that  had  been  restrained  to  tho  death  of  the 
person  executing  the-powcr,  it  woidd  have  been  good.  The  bill 
was  brought  by  the  four  daughters  of  John  and  Elizabeth  Gee  to 
have  the  fund  secured  for  their  benefit  upon  the  death  of  IMary 
Hall  without  issue.  Lord  Kenyon  held,  that  as  the  execution 
would  take  in  children  born  after  the  death  of  the  appointor,  it 
was  too  remote,  and  he  would  not  wait  to  see  what  contingency 
would  happen. 

*18.  The  same  point  arose  in  the  case  of  Routledge  v.  \_*GQ  ] 
Dorril ;((?)  and  Lord  Alvanley,  when  Master  of  the  Rolls, 
started  the  question,  whether  those  children  who  might  have  been 

(6)  Ambl.  13G. 

(c)  See  Crozier  v.  Crozler,  3  Dru.  &  War.  369. 

(rf)  2  Ves.  jun.  365,  cited;  reported  in  1  Cox,  324,  nom.  Jee  T.  Audley,  •where  it 
does  not  appear  to  have  been  the  execution  of  a  power, 
(c)  2  Ves.  jun.  367. 


60  SUGDEN   ON   POWERS. 

the  proper  object  should  take.  At  first,  he  said,  ho  was  of 
0])iiiion,  that  as  she  miglit  have  a])])oinled  to  tlic  three  chiklren 
born  before  her  death,  when  she  a|)|)ointf(l  t(j  all,  tliese  three 
miuht  be  considered  as  the  solo  objects  :  but  upon  considering  it 
further,  and  ])articMhii-ly  uj)on  Cee  and  AuiHev,  lie  was  ofoiiinion 
that  would  bo  a  Ibrced  construction;  and  that  tlie  donee,  in 
affecting  to  give  this  to  all  the  issue  her  daughter  might  have  at 
any  time,  had  transgressed  the  power  ;  and  so  far  being  ill  exe- 
cuted, it  was  to  be  considered  as  not  executed,  and  was  totally 
void.  The  donee,  he  observed  in  another  place,  did  not  mean 
those  only  to  whom  shCmight  have  ap})ointed,  but  all ;  and  upon 
failure  of  all,  then,  and  then  only,  she  gave  it  ovcr.(/) 

19.  In  the  case  of  Alexander  v.  Alexander,  Sir  Thomas 
Clarice,  addressing  himself  to  the  impossibility  of  discovering  the 
excess  in  the  case  before  him,  because  it  was  given  indehnitcly, 
said,  that  had  it  been  free  from  that  circumstance  of  uncertainty, 
how  much  each  was  to  take,  it  icoiild  he  void  as  to  the  ivife  and 
children,  who  were  not  objects  of  the  power.  Suppose,  he  added, 
she  had  given  it  to  the  husljand,  his  wife  and  children,  in  gross 
sums  absolutely,  equalhj  to  he  divided,  that  would  have  been  bad, 
and  an  excess  of  her  power,  and  if  it  had  been  such  a  partial  ap- 
pointment, so  far  as  void,  it  would  have  fallen  into  the  residue. 

20.  Now  in  the  cases  of  Gee  and  Audley,  and  Boutledge  and 
Dorril,  the  fund  loas  given  equally  amongst  the  cliildren,  but  yet 
the  Court  would  not  consider  the  appointment  good  pro  ianto. 
However,  those  cases  turned  on  the  remoteHcss  of  the  limitation  ; 

and  it  should  still  seem  that  where  the  fund  is  given 
[  *G7  ]  amongst  several  objects,  some  of  whom  cannot  *take,  and 

the  excess  can  be  ascertained,  the  objects  who  are 
capaldc  may  in  most  cases  take  their  shares  : — If  a  fund  should 
be  given  between  the  })arent  capable,  and  his  children  inca])al)lc, 
in  equal  moieties,  it  seems  clear  that  the  parent  would  be  entitled 
to  liis  moiety ;  so  if  the  fund  were  given  equally  amongst  the 
objects  of  the  power,  and  strangers  living  and  ascertained,  there 
appears  to  be  no  solid  principle  upon  which  the  real  objects  could 
be  refused  the   shares  to  which  they  would  have  been  entitled 

(/)  Upon  the  law  as  to  general  gifts,  see  Leake  v.  Robinson,  2  Mer.  390; 
Farmer  v.  Francis,  2  Bing.  155;  Bull  v.  Fritchard,  1  Russ.  216;  Jones  v.  Mackil- 
wain,  1  Russ.  222. 


APPOINTMENT   TO    A   STRANGER.  61 

upon  a  division  if  the  whole  appointment  had  been  valid,  (g-) 
Lord  Alvanley  appears  to  have  been  of  that  opinion, (A)  and 
the  point  has  lately  been  so  decided  in   Sadler  v.  Pratt. (i) 

21.  Although  a  limitation  be  void,  as  not  authorised  by  the 
power,  yet  it  is  not  considered  absolutely  void,  so  as  to  accelerate 
the  remainders  dependent  on  it,  which,  if  given  immediately, 
would  have  l)een  good  ;  but  notwithstanding  that  it  be  void  itself, 
yet  it  prevents  the  limitations  over  from  taking  effect  ;(A:)  for,  as 
Lord  Alvanley  observed,  it  would  be  monstrous  to  contend  that 
though  it  was  appointed  to  the  remainder-man  in  failure  of  the 
existence  of  persons  incapable  of  taking,  yet  notwithstanding 
they  exist,  he  should  take  it  as  if  it  was  well  appointed  to  them, 
and  they  had  failed.  It  is  given  upon  a  contingency*,  upon  which 
there  is  no  right  to  give  it.(Z)  And  where  the  first  limitation  is 
too  remote,  and  therefore  void,  a  subsequent  limitation  to  an  ob- 
ject of  the  power  shall  not  take  effect,  although  the  person  in- 
tended to  take  under  the  void  limitation  have  actually  failed. (m) 

22.  In  Alexander  v.  Alexander,(w)  under  a  power  to  appoint 
a  personal  fund  to  children,  the  donee  appointed  to  a 
*daughtcr  Catherine  for  life,  and  after  her  death  to  her  [  *68  ] 
cliildren  living  at  her  death  ;  in  default  of  such  child  or 
children,  the  principal  to  her  if  she  survived  her  liusband,  but  if 
she  died  in  his  life  the  principal  at  her  decease  to  go  to  James 
and  ]\rary  (two  otlicr  children,  objects  of  the  power.)  The  gift 
to  the  daughter  for  life  was  held  good,  that  to  the  grandchildren 
void.  Next,  the  learned  Judge  said,  as  to  the  contingent  interest 
to  Catlierine,  if  she  had  no  children  and  she  survived  her  hus- 
l)and,  but  in  default  thereof  to  James  and  Mary:  suppose  Cathe- 
rine leaves  chikhen  at  the  time  of  her  deatli,  it  is  impossible  any 
of  these  limitations  over  should  take  eflect,  it  will  fall  into  the 


{g)  See  2  Ve3.  G44. 

{h)  See  4  Ves.  jun.  786. 

(i)  5  Sim.  632:  Palsgrave  y.  Atkinson,  1  Coll.  190. 

(7c)  Alexander  v.  Alexander,  2  Ves.  640;  Robinson  v.  Hardcastle,  2  T.  Rep.  241; 
Bailey  v.  Lloyd,  5  Russ.  330;  but  see  Doe  v.  Lord  George  Cavendish,  4  Term  Rep. 
744,  n.  which  in  this  respect  is  not  law. 

(/)  Routledge  v.  Dorril,  2  Ves.  jun.  357;  Beard  v.  Westcott,  Gilbert  on  Uses,  270». 
n. ;  1  Turner,  25. 

(m)  See  1  Vict.  c.  26,  s.  25. 

(n)  2  Ves  640. 

Vol.  II.  6 


62  SUGDEN   ON  POWERS. 

residue,  l)ccausc  it  "\v.is  no  ajipointmciit,  being  only  a  jjartial  ap- 
pointment given  only  to  Catlierine  for  life ;  .and  yet  the  children, 
though  they  could  nut  take  themselves,  would  yet  prevent  the 
limitation  over. 

23.  This  was  the  case  of  an  executory  limitation,  which  was 
licld  incapable  of  taking  eflect  unless  in  the  event  upon  which  it 
was  given,  although  the  jtrior  gift  was  void.  The  distinction  be- 
tween such  a  case  and  that  of  a  remainder  in  form  limited  to  an 
object  capable  of  taking  after  such  an  invalid  estate,  as  we  have 
before  noticed,  to  a  person  not  an  ol)icct,  or  being  an  object,  in- 
capable of  taking  on  account  of  remoteness,  is  that  such  a  re- 
mainder as  is  void  in  its  creation. 

24.  In  Doe  v.  Lord  George  Cavcndish(o)  under  a  full  power 
to  appoint  to  children  in  fee,  and  in  default  of  ajjpointment  there 
was  a  gift  to  the  children  as  tenants  in  common  in  tail,  with  cross- 
remainders  between  them  in  tail,  the  donee  ajjpointed  the  estate 
to  one  son  (Richard)  for  life,  remainder  to  his  sons  in  tail  male, 
remainder  to  another  son  (George)  for  life,  <tc. ;  Richard  died  a 
bachelor,  and  Lord  Manslaeld  said  that  it  was  objected  that  the 
api)ointmcnt  being  void  in  part,  should  be  void  in  toto  ;  but  as  to 
that,  the  Court  were  of  opinion  that  if  void  as  to  the  children,  it 

was  good  to  Lord  George  for  life.(j9).  But  this  i^  not 
[  *69  ]  law,  *and  the  couti-ary  has  frequently  been  determined. 

Lidccd  Lord  JMausfield  appears  to  have  ruled  this  very 
point  in  the  prior  case  of  Adams  v.  Adams,  although  the  certifi- 
cate is  not  clearly  expressed  on  this  head.(//) 

25.  In  Robinson  v.  Hardcastle,(r)  the  power  was  to  the  hus- 
band, the  tenant  for  life,  to  appoint  to  such  of  the  children  as  he 
thought  proper,  and  in  default  of  appointment  the  estate  was 
limited  to  the  first  and  other  sons  successively  in  tail,  with  limita- 
tions over.  The  donee,  in  exercise  of  the  power,  appointed  the 
estate  to  the  only  son  for  life,  remainder  to  his  sons  and  daughters 
in  tail,  and  for  default  of  such  issue,  to  one  of  the  daughters  of  the 
marriage  in  fee.  The  son  died  witliout  issue,  but  had  suflcred  a 
recovery.     It  was  admitted  that  the  limitations  to  the  grand-chil- 

(o)  4  Term  Rep.  741 ,  n. 

(j))  And  see  4  Terai  Rep.  246. 

(g)  Cowp.  G51;  supra,  p.  48. 

(r)  2  Term  Eep.  241.  781;  2  Bro.  C.  C.  22.  344. 


•  APPOINTMENT  TO    A    STRANGER.  63 

dren  were  void — they  were  not  within  the  power,  and  were  be- 
sides too  remote — but  it  was  insisted  that  the  appointment  to 
them  was  to  he  considered  as  if  it  had  never  been  inserted  in  the 
will,  and  therefore  the  remainder  to  the  daughter  in  fee  was 
accelerated  ;  and  Lord  Thurlow  inclined  to  this  reasoning.  He 
said  the  question  was,  whether  such  an  illegal  estate  being  inter- 
posed, it  shall  not  be  considered  as  a  nullity,  and  the  next  estate 
be  brought  forwards  and  attached  to  the  estate  for  life.  The 
cases  seemed  to  support  this  doctrine,  but  not  so  clearly  as  for  it 
not  to  deserve  further  consideration.  The  will  must  have  the 
favourable  construction  of  one  ;  and  you  must  consider  the  testa- 
tor as  intending,  if  the  first  was  bad,  that  the  subsequent  limita- 
tion should  take  place,  though  this  was  an  extraordinary  intent 
to  attribute  to  him. (5)  Mr.  Justice  Buller  observed,  that  if  a 
subsequent  limitation  depended  upon  a  prior  estate  which  was 
void,  the  suljsequent  one  must  fall  Avith  it.  If,  indeed,  the  sub- 
sequent limitation  was  not  dependent  ujion  the  other,  it  might 
then  take  jilace,  notwithstanding  the  first  was  Ijad.  Upon 
a  later  day,  after  some  observations  which  should  be*  read  [  *70  ] 
by  the  student  with  caution,  he  treated  the  appointment 
to  the  son  and  his  children  as  invalid,  but  thought  that  he  either 
took  an  estate  tail  under  the  appointment  or  under  the  settlement. 
The  second  ground  on  which  the  daughter's  title  had  been  rested 
was,  that  if  the  immediate  limitations  in  strict  settlement  to  the 
son  were  void,  it  should  accelerate  the  daughter's  remainder  in 
fee.  But  the  case  of  Alexander  v.  Alexander  was  decidedly 
against  it,  for  the  Master  of  the  Rolls  there  said,  that  though  the 
children  could  not  take,  yet  they  shoidd  prevent  the  limitation 
over.  When  this  case  was  directed  to  be  sent  here,  the  Lord 
Chancellor  very  properly  observed,  that  to  support  this  argument 
the  testator  must  be  considered  as  intending  that  if  the  first  use 
was  bad,  the  subsequent  limitation  should  take  effect,  though  this 
seemed  an  extraordinary  intent  to  attribute  to  him.  It  would  be 
extraordinary  indeed,  for  then  it  must  be  said,  that  though  the 
testator  has  expressed  an  intention  in  his  will  to  provide  for  his 
son  and  his  issue,  the  grandchild  should  be  disinherited,  which 
must  be  the  consequence  if  the  daughter's  remainder  should  be 

(s)  2  Bro.  C.  C.  30. 


64  SUGDEN   ON  POWERS.  • 

accelerated.     Tlic  Lord  Cliancellor  acted  upon  the  opinion  of  the 
Court,  that  the  daughter  took  no  interest  in  the  estate. 

2G.  The  doctrine  was  finally  settled  by  the  case  of  Brudenell 
V.  Elwes,(/)  where  a  Avonian,  under  a  power  to  revoke  and  limit 
new  uses  amongst  tlie  children  of  the  marriage,  did  revoke  and 
limit  life  estates  to  two  of  the  children,  a  daughter  and  so)i  suc- 
cessively, and  then  to  trustees  to  preserve  contingent  remainders, 
with  remainder  to  the  sons  of  the  son  (tlie  tenant  for  life)  in  tail 
male,  remainder  to  another  son  for  life,  remainder  to  trustees  as 
before,  remainder  to  his  iirst  and  other  sons  in  tail  male,  remain- 
der to  the  daughter  in  fee.  Both  of  the  sons  died  without  issue 
male.     The  question  was,  whether  the  remainder  to  the  daughter 

in  fee  was  in  the  events  good  ;  and  it  was  decided  to  be 
[  *71  ]  *invalid.     Lord  Kenyon  said,  the  wife  had  no  power 

under  the  settlement  to  appoint  to  the  children  of  un- 
born children,  but  she  was  confined  to  execute  her  power  among 
the  children.  (1)  So  far  therefore  as  she  appointed  an  estate  for 
life  to  tiie  daughter,  with  remainder  for  life  to  one  of  the  sons, 
she  did  well ;  beyond  that  she  exceeded  her  power  in  appointing 
to  the  issue  of  that  son,  and  therefore  the  excess  was  void.  But 
it  was  equally  clear  that  she  did  not  intend  that  the  subsequent 
limitation  over  to  the  daughter  should  be  accelerated,  but  it  was 
made  to  depend  upon  the  intermediate  linutation  to  the  issue  of 
her  Ijrothers,  and  she  was  not  to  take  till  their  issue  male  were 
extinct.  Those  intermediate  limitations  therefore  being  void,  the 
ultimate  remainder  dependent  upon  them  must  also  fall.  If  then 
the  appointment  were  originally  bad  for  the  excess,  the  subsequent 
circumstance  of  the  death  of  the  brother  without  having  had 

(0  1  East,  442;  7  Ves.  jun.  382;  and  see  Beard  v.  Wcstcott,  5  Taunt.  3'J2;  5 
Barn.  &  Aid.  804;  1  Turn.  25. 

(1)  The  general  rule  seems  to  be  that  the  exercise  of  a  power  ia  favour  of  a  c/ass 
of  persons,  as  children,  &c.,  is  for  the  benefit  of  those  living  at  the  time  of  the  appoint- 
ment. Though  children,  in  the  ordinary  sense,  do  not  include  grandchildren,  yet  in  a 
will  grandcliildrcn  and  even  great-grandchildren  may  take  by  the  designation  of  chil- 
dren, when  necessary  to  effectuate  a  manifest  intent.  This  is  the  case  when  the  word 
children  is  used  co-extensive  with  issue,  or  when  there  are  no  children  literally  to 
answer  the  description.  Cutter  v.  Doughty,  23  Wendell,  522;  Iluft  v.  Rutherford,  1 
Bailey's  Eq.  Rep.  17;  Ilallowell  v.  Phipps,  23  Wharton,  376;  Dickinson  v.  Lee,  4 
Watts,  82;  Mowatt  v.  Carrow,  7  Paige,  328;  Philips's  Devisees  v.  Ball,  9  Dana  Ken- 
tucky Rep.  1. 


APPOINTMENT   TO    A   STRANGER.  65 

issue,  cannot  make  it  good.  The  appointment  must  be  legal  at  the 
time  of  its  creation.  Therefore  the  estate,  must  go  as  in  default 
of  appointment  beyond  the  two  estates  for  life,  according  to  the 
directions  of  the  settlement. 

27.  But  in  a  case  where  the  fund  was  given  to  a  son  who  was 
an  object  of  the  power,  and  was  alive  at  the  time  it  was  created, 
for  life,  and  after  his  decease  to  his  wife  and  children,  who  were 
not  ol)jccts ;  hut  in  case  he  should  die  ivithout  leaving'  a  ivife  or 
child  him  surviving-,  then  to  his  sister,  who  was  an  object  of  the 
power ;  the  trusts  for  the  wife  and  children  were  determined  by 
Lord  Alvanley  to  be  bad,  l3ut  he  at  the  same  time  lield  that  if  the 
sou  should  die  without  leaving  a  wife  or  child  surviving,  the  gift 
over  to  the  daughter  would  be  good.  And  he  distinguished  this 
case  from  the  others,  on  the  ground  that  this  limitation  over  to 
the  daughter  was  if  the  son  should  die  without  leaving  a  wife  or 
child  surviving.  It  fails  as  far  as  it  affects  to  give  interests  to 
the  children  ;  but  was  there,  he  asked,  any  occasion  to  make  it 
fail  upon  the  other  point,  the  gift  over  to  a  person  who  is  an 
object  of  the  power  ?  Why  was  he  to  exclude  the  person 
*taking  over  who  had  a  right  to  take  ?  There  were  two  [  *72  ] 
alternatives.     If  the  son  should  leave  no  wife  or  children 

at  his  dcatli,  then  the  limitation  over  being  to  a  good  object  would 
take  effect ;  if  he  should  leave  a  wife  or  children,  then  it  could 
not  take  effect. (m)  As  Lord  Kenyon  observed  in  a  subsequent 
case,(.x)  the  case  went  upon  the  ground  of  its  being  an  appoint- 
ment with  a  double  aspect,  and  therefore  that  if  the  contingency 
which  went  beyond  the  power  should  not  happen,  it  would  not 
stand  in  the  way  of  tliose  wlio  might  take  under  the  appointment 
in  the  event  which  happened,  and  who  were  within  the  power. 

28.  So  a  gift  to  an  object,  with  a  gift  over  in  a  particular  event 
to  a  person  not  an  ol)ject,  is  void  only  as  to  the  gift  ovcr.(y) 

29.  Where  no  question  of  perpetuity  arises,  and  the  power 
authorizes  a  gift  in  remainder,  a  devise  under  a  power  to  a  stran- 
ger for  life,  with  remainder  to  an  object  of  the  power,  is  void  only 
as  to  the  life  estate,  and  valid  as  to  the  remainder,  and  the  estate 

(u)  Crompe  v.  Barrow,  4  Vc3.  jan.  681 ;  and  see  3  Bro.  C.  C.  415;  Bailey  v.  Lloyd, 
5  Russ.  342.  344;  Hewitt  v.  Lord  Dacre,  2  Kee.  022;  and  see  supra,  p.  67. 
(z)  Brudenell  v.  Elwes,  1  East,  450. 
(j/)  Brown  v.  Nisbet,  1  Cox,  43. 

6* 


^io  SUGDEN   ON   TOWERS. 

(Uirino;  the  life  of  the  stranger  Avill  go  as  in  default  of  appoint- 
ment.(c) 

oO.  !So  where  actual  estates  arc  not  attempted  to  be  given,  but 
a  more  power  is  limited  to  a  stranger  to  appoint  tlie  fund,  and  in 
default  of  aiipointiiuMifc  the  fund  is  given  amongst  proper  objects, 
the  i)ower  being  merely  void  on  the  ground  that  delegatus  non 
potest  deleg'(ir(',(^a)  the  ultimate  limitation  will  take  eflect  in 
possession.  This  Avas  decided  by  Lord  llardwicke  in  Ingram  v. 
Ingram, (ft)  where,  however,  the  delegated  power  was  to  appoint 
the  fund  amongst  the  objects  of  the  original  power,  and  in  default 

of  appointment,  the  fund  was  given  to  the  same  olyects. 
[  *73  ]       *31.  It  should  seem  tliat  the  rule  would  not  prevail 

where  a  power  is  aflccted  to  be  given  to  appoint  the  fund 
amongst  strangers^  because  in  that  case  it  would  be  the  intention 
of  tlie  donee  of  the  original  power,  that  the  o1)ject  should  not  take 
unless  in  default  of  execution  of  the  delegated  power  in  favour  of 
the  strangers.  The  intention  of  the  donee  of  the  power  is  the 
express  groimd  upon  whicli  limitations  over  to  good  objects,  after 
limitations  to  strangers,  are  held  to  l)e  void ;  and  the  principle 
a])i)lics  as  forcibly  to  a  power  to  appoint  to  strangers  as  to  a 
direct  gift  to  them.  Nor  would  the  rule,  for  the  same  reason, 
apply  to  a  case  where  the  delegated  power  is  to  appoint  to  some 
of  the  ol)jects,  and  the  fund  in  default  of  appointment  is  given  to 
others,  although  objects  of  the  original  power.  But  in  this  last 
case  it  might  be  otherwise  if,  in  default  of  appointment  under  the 
delegated  power,  the  fund  was  given  amongst  all  the  objects. 

32.  Where  the  power  to  appoint  to  children  was  exercised  in 
their  favour,  Ijut  the  payment  was  postponed  until  the  death  of 
their  mother,  with  a  direction  that  she  should  receive  the  divi- 
dends for  her  life,  and  apjily  the  same  in  the  exercise  of  lier  soimd 
discretion  for  the  best  interest  and  advantage  of  the  children,  the 
appointment  as  to  the  dividends  was  held  to  be  wholly  void,  and 
they  were  during  the  wife's  lifetime  directed  to  go  as  in  default 
of  appointment,  (c) 

33.  And  where  there  is  an  absolute  appointment  to  the  chil- 

(i)  Crozier  v.  Crozier,  3  Dru.  &  War.  353. 

(a)  Vide  supra,  ch.  5,  sect.  1. 

(6)  2  Atk.  88. 

(c)  Chester  v.  Chadwick,  13  Sim.  102. 


APPOINTMENT   TO   A   STRANGER.  67 

dren,  the  object  of  the  power,  and  then  a  direction  that,  as  far  as 
the  donee  can  at  law  or  equity  so  direct,  the  shares  shall  be  held 
upon  trust  for  them  for  life,  and  then  for  their  cliildren ;  the 
appointment  to  tlie  cliildren  will  be  supported,  and  the  interests 
to  the  grandchildren  will  be  deemed  inoperative. (f/) 

34.  This  has  been  carried  still  further  ;  for  in  a  case 
Vhere  the  power  included  children  or  remote  issue  born  [  *74  1 
in  the  lifetime  of  the  mother,  the  donee,  an  appointment 
equally  to  several  children  (one  of  whom  was  an  unmarried 
daughter,  an  infant,  who  remained  so  at  her  mother's  death)  was 
held  10  give  to  the  daughter  her  share  absolutely,  although  the 
testatrix  proceeded  to  declare  that  the  daughter's  share  should 
be  vested  in  trustees  for  her  separate  use  for  life,  and  after 
her  death  to  her  children,  with  a  power  to  her  to  have  500/.  at 
twenty-one  or  marriage  with  consent,  (e)  For  this  was  con- 
sidered to  be  within  the  authority  of  Carver  v.  Bowles  ;  because 
although  the  words  in  that  case,  "  so  far  as  I  lawfully  can  or 
may,"  were  not  contained  in  this  will,  yet  the  cflcct  must  neces- 
sarily be  the  same.  We  should  be  careful  how  we  apply  this 
doctrine  ;  for  where  the  absolute  apparent  gift  is  explained  to  be 
only  a  life  interest,  to  Avhich  are  added  void  gifts,  we  might  be 
led  to  suppose  that  a  gift  to  an  oltject  of  the  power  for  life,  with 
a  gift  over  to  his  children  not  objects  of  it,  would  vest  the  abso- 
lute property  in  the  object ;  which  is  contrary  to  the  settled'  rule. 

(rf)  Carver  v.  Bowles,  2  Russ.  &  Myl.  301. 
(e)  Kampf  Y.  Jones,  2  Kee.  756. 


68  SUGDEN  ON   POWERS. 

[  'To  ]  *SECTION  II. 

OF  EXCESS   IN   THE   QUANTITY   OF   ESTATE. 
1.  Complete  execution,  with  excess,  the  J  10.  A  privilege  limited  by  tlie  ilonee  of 


latter  void, 

2.  Lease  for  more  years  than  warranted, 

good  in  cqnity  pro  tanto. 

3.  Bad  at  law. 


the  power  to  himself,  not  warranted, 
void. 
11.  Appointment  though  wrong,  valid,  if 
tlie  interest  is   defined  in  the  cre- 


6.  Unless  excess  is  by  a  distinct  limita-  i  ation  of  the  power. 

tion.  12.  Equitable  estate  instead  of  legal,  bad. 

7.  But  if  the  two  limitations  make  one;  13.  Bland  v.  Bhind,  with  observations. 


estate,  bad. 

8.  Charge  of  a  larger  sum  than  warrant- 
ed, good  in  equity. 

0.  So  if  time  is  wrong  at  which  the  inter- 
est beoiius. 


15.  Excess  of  interest  not  corrected  at  law 

by  reference  to  the  power. 

16.  Covenant  for  enjoyment  limited  to  life 

does  not  cure  excess  in  an  appoint- 
ment in  fee. 


1.  The  same  principle  prevails  in  this  case  as  in  tlie  former. 
Where  there  is  a  complete  execution,  and  something  ex  ahundanti 
added,  which  is  improper,  there  the  execution  shall  be  good,  and 
only  the  excess  void  ;  but  where  there  is  not  a  complete  execution 
of  a  power,  and  the  boundaries  between  the  excess  and  exe- 
cution are  not  distinguishable,  it  will  be  bad.  (/  ) 

2.  If  a  man  having  a  power  to  lease  for  twenty-one  years,  lease 
for  forty,  that  will  be  good  in  equity  pro  tanto,  because  it  is  a 
com'plete  execution  of  the  power,  and  it  appears  how  much  he  has 
exceeded  it.(g')  This  point  has  often  been  decided,  and  was  de- 
termined in  the  great  case  of  Campbell  and  Leach, (//)  where, 
under  a  power  of  leasing  for  twenty-one  years,  a  lease  for  twenty- 
six  years  was  granted,  and  it  w^as  liolden  to  be  void  only  for  the 

excess. 
[  *TG  ]       *3.  But  it  was  admitted  at  the  bar  in  that  casp,  and 

appears  to  have  been  considered  by  the  Court,  that  the 
excess  rendered  the  lease  void  at  laiv ;  and  Hale,  when  Chief 
Baron,  expressed  his  opinion  clearly,  that  if  a  man  has  power  to 
make  leases  for  twenty-one  years,  and  he  make  a  lease  for  twenty- 

(/  )  Per  Sir  Thomas  Clarke,  2  Ves.  G44;  and  see  13  Ves.  jun.  576.  . 
{g)  Ibid.;  and  see  Parry  v.  Brown,  2  Freem.   171;  3  Cha.  Rep.  610;  Nels.  Ch. 
Rep.  87;  and  see  Anon.  2  Freem.  224;  Barnard.  Cha.  Rep.  116. 
{h)  Ambl.  740. 


EXCESS   IN   QUANTITY   OF   ESTATE.  69 

two  years,  it  is  not  good  for  twenty-one  years,  (i)  And  in  a 
recent  case  the  Court  of  King's  Bench  actually  decided  that  the 
excess  was  fatal  at  law.  (A;)  We  cannot  fail  to  distinguish  this 
case  from  cases  like  that  of  Adams  and  Adams, (/)  whore  a  dis- 
tinct and  independent  limitation  is  introduced,  not  authorized  by 
the  power  ;  whereas  in  cases  like  Campbell  and  Leach  the  excess 
is  interwoven  with  the  limitation  authorized  by  the  power.  The 
same  rule  must  apply  more  forcibly  where  the  lease  is  made,  con- 
trary to  the  power,  to  commence  infutiiro,  for  no  limitation  of 
the  term  will  make  a  lease  in  reversion  a  lease  in  possession. (wi) 

4.  In  one  case  Holt,  C.  J.,  said,  obiter,  as  for  the  case  put 
upon  the  statute  of  Elizabeth,  where  a  lease  is  made  ])y  a  Bishop 
for  twenty-two  years,  it  shall  )je  void  in  the  whole,  and  shall  not 
be  good  against  the  successor  for  twenty-one  years,  because  the 
statute  ties  it  up  to  that  form.(l)  But  if  the  words  of  the  stat- 
ute were,  that  they  might  make  leases  for  any  number  of  years 
not  exceeding  twenty-one  years,  if  a  lease  were  made  for  twenty- 
two  years,  it  would  stand  good  for  oue-and-twenty  years. (w) 

5.  When  a  distinct  limitation  is  superadded,  it  will  l)c  merely 
void,  and  will  not  affect  a  prior  valid  appointment,  even  at  law  ; 
as,  if  under  a  power  to  lease  for  twenty-one  years,  a 

lease  be  accordingly  made  for  twenty-one  years,  *and  by  [  *77  ] 
the  same  deed  the  donee  limit  a  further  term  in  this  man- 
ner, viz.,  and  from  and  after  the  term  aforesaid  for  one  year  more 
the  power  will  be  well  executed  by  the  first  limitation,  and  the 
excess  will  be  surplusage  not  to  be  regarded,  (o) 

G.  Tlic  leading  case  of  Common  v.  Marshall (/;)  appears  to 
have  been  decided  on  this  ground.  There,  Lord  Xctterville  had 
a  power  of  leasing  for  any  term,  not  exceeding  thirty-one  years, 
or  three  lives,  to  commence  in  possession,  and  he  granted  a  lease 

(0  Hard.  ;W8. 

(/r)  Roe  V.  Prideaux,  10  East,  158. 

(/)   Vide  supra,  p.  48. 

(7/1)  Doe  V.  Calvert,  2  East,  376. 

(h)  2  Lord  Raym.  1000. 

(0)  Fitz.  157;  and  see  2  Scho.  &  Lcf.  3o2. 

(l>)  7  Bro.  P.  C.  Ill ;  see  S.  C.  Lord  Netterville  v.  Miirsliall,  1  Wall.  &  Lyme,  80. 

(1)  The  words  are, — all  grants,  estates,  &c.,  •wlicreby  any  estate  should  pass  other 
•  than  for  term  of  twenty-one  years,  or  three  lives  from  such   time  as  the  same  shall 

begin — shall  be  Toid. 


70  SUGDEN   ON   POWERS. 

for  three  lives,  or  for  thirty-one  years,  vjhich  should  last  longest. 
The  Court  of  Exchequer  iii  Ireland  construed  the  woi'd  or  into 
and,  and  so  made  it  a  lease  certain  for  lives,  with  a  remainder  of 
thirty-one  years  ;  and,  considering  the  excess  only  as  void,  gave 
judgment  in  favour  of  the  lessee.  Upon  aji^ical  to  tlie  Exchequer 
Clianibcr  iu  Ireland,  Lord  Chief  Justice  Annaly  delivered  his 
opinion  for  rcversinu-  the  judgment,  but  the  Lord  Chancellor  being 
of  a  dilTercnt  opinion,  adirnied  it.  Upon  tliis  a  writ  of  error  was 
brought  in  parliament ;  and  it  was  insisted,  for  the  plaintiff  iu 
error,  that  the  Avords  ivhicli  shall  last  long-est  showed  that  both 
the  terms  for  lives  and  years  Avere  not  intended  to  pass,  but  one 
only,  and  Avhich  it  should  be  was  to  depend  upon  the  event  men- 
tioned, and  could  not  therefore  commence  in  possession  at  the 
making  of  tlie  lease,  as  expressly  required  by  the  poAA^er.  On  the 
other  liand,  it  was  insisted  that  the  lease,  so  far  as  it  was  a  lease 
for  three  lives,  was  clearly  warranted  by  the  power,  and  this  was 
apparently  the  primary  ol)ject  of  the  parties.  Besides  this  they 
had  a  second  in  view,  Avhich  Avas,  to  secure  the  estate  to  the  lessee 
for  thirty-one  years  in  case  the  Ha'CS  should  determine  sooner. 
But  this  was  not  warranted  by  the  power,  and  was  therefore  void  ; 
but  the  excess  only  Avas  to  be  corrected.  The  Judges  here  gave 
an  unanimous  opinion  in  faA'our  of  the  lease,  and  the 
[  *T8  ]  "House  of  Lords  decreed  accordingly.  Lord  Mansfield 
o1)servcd,  in  a  later  case,  that  the  lease  it  was  contended 
was  in  manifest  opposition  to  the  poAVcr,  because,  instead  of  being 
a  lease  for  one  or  other  of  the  terms  expressly,  as  the  power 
directed,  it  was  a  lease  for  one  or  other  as  cliance  should  direct, 
but  the  lease  AA^as  supported.  (7) 

7.  But  where  the  limitations,  although  scA-eral  and  distinct, 
make  but  one  estate  in  Uiav,  the  appointment  is  AvhoUy  void  at 
law  by  reason  of  the  excess  ;  as,  if  under  a  power  to  appoint  for 
life,  the  donee  appoint  to  the  ol)ject  of  the  ])Ower  for  life,  and 
after  his  death  to  the  use  of  his  (the  appointee's)  heirs,  or  the 
heirs  of  his  l)ody,  the  tAvo  limitatious  coalesce,  and  the  appoint- 
ment is,  in  effect,  of  an  estate  in  fee,  or  an  estate  iu  tail,  and 

{q)  Cowp.  268.  Lord  Mansfield  transposes  the  clauses  in  the  power,  and  says,  the 
words  three  lives  were  rejected.     'J'his  is  obviously'  a  mistake. 


WHERE   EXCESS   IN   ESTATE   REJECTED.  71 

therefore  is  at  law  void  in  toto,(j'')  altliough  the  excess  would  be 
corrected  in  equity. 

8.  In  equity  also,  a  power  to  charge  a  particular  sum,  as  7,000?. 
will  l)e  duly  executed  by  a  charge  of  a  larger  sum,  as  8,000/., 
and  the  excess  only  will  be  void.(s) 

9.  So  equity  will  cdrrect  a  mistake  in  the  execution  of  a  ])owcr 
with  respect  to  the  time  at  which  the  interest  should  com- 
mence. (/) 

10.  In  some  cases  a  power  at  first  sight  appears  to  be  exceeded, 
when  in  fact  the  excess  is  a  mere  void  declaration.  Thus  in  the 
case  of  Tliomlinson  v.  Dighton,(?/)  where  a  tenant  for  life,  with 
a  power  to  appoint  the  inheritance  to  her  child,  limited  the  estate 
to  herself  for  life,  vnthovt  impeachmeni  of  waste,  with  remainder 
to  her  child  in  fee,  it  was  objected,  tliat  the  conveyance  left  in 
her  an  estate  for  life,  wiUiout  impeadnuent  of  waste,  which  was 
not  in  her  power  to  do.  Lord  Chief  Justice  Parker,  in 
delivering  the  *unanimous  oi)inion  of  the  Court,  said,  [  *79  ] 
that  the  child  would  be  in,  not  by  virtue  of  her  convey- 
ance, but  by  the  will  creating  the  power,  and  so  would  overreach 
her  estate  without  impeachment  of  waste  ;  and  consequently  that 
clause  in  the  conveyance  "  without  impeachment  of  waste,"  would 
have  no  operation,  for  the  child  migiit,  notwithstanding,  bring  an 
action  of  waste  against  her. 

11.  So  where  the  quantity  of  interest  to  be  taken  by  the  ap- 
j)ointec  is  expressly  limited  by  the  instrument  creating  the  power, 
and  the  donee  is  only  authorized  to  a[)point  the  lands  over  wliich 
the  estate  is  to  ride,  an  appointment  by  him  of  an  interest  ex- 
ceeding that  intended  to  be  given  to  the  appointee,  is  tantamount, 
even  at  law,  to  a  regular  appointment.  This  is  the  case  of  Peters 
V.  Moorehead,(w)  where  an  estate  was  given  by  will  to  tlic  son 
for  life,  and  then  the  testator  devised  such  part  of  the  said  lands 
as  his  son  should  appoint  to  such  wife  as  the  son  should  marry, 
for  her  life,  with  remainder  to  the  sons  of  the  son.  The  son 
exercised  his  power  by  granting  the  estate  by  deed,  merely  scaled 

(r)  Fitz.  157;  sed  qu. 

(s)  Parker  v.  Parker,  Gilb.  Eq.  Rep.  1C8. 

(0  Probert  v.  Morgan,  1  Atk.   440. 

(u)  10  Mod.  31.  71. 

(t?)  Tort.  339;  Fitz.  156. 


72  SDGDEN   ON   POWERS. 

and  (lelivcrccl,  to  trustees,  in  trust  for  himself  for  life,  and  after 
his  death  to  the  use  of  his  intended  wife  for  life,  and  after  her 
death  to  the  use  of  the  heirs  male  of  her  body.  The  Court 
thought,  that  as  the  two  limitations  made  but  one  estate  in  the 
wife,  it  would,  in  a  common  case,  have  been  a  A'oid  execaition : 
but  they  lield  that  the  son  had  ))o\ver,  not  to  limit  the  estate,  but 
to  appoint  tlic  land,  so  tliat  the  question  simply  was,  whctlier  he 
had  sulheicntly  specified  the  land  ;  and  they  decided  in  favour  of 
the  validity  of  tlie  ajjijointmcnt.  Eyre,  Chief  Justice,  even 
thouglit  that,  thougli  the  son  had  limited  an  inferior  interest,  yet 
the  wife  should  have  an  estate  for  her  life  ;  but  Fortescue  is  re- 
ported to  have  doubted  if  the  son  had  barely  appointed  the  land 
without  limiting  any  estate,  whether  it  would  be  good.  It  is  ob- 
servable, however,  that  the  learned  Judge  does  not  notice 
[*  80  ]  this  doubt  in  his  own  report  of  the  *case,  and  it  certainly 
is  directly  overruled  by  the  decision  itself,  which  was, 
that  the  son  had  no  power  to  limit  the  estate  in  the  land,  but  only 
the  land  itself;  and  it  is  in  express  opposition  to  the  opinion  of 
the  Chief  Justice,  tliat  tlie  wife  Avould  have  taken  for  life,  though 
a  less  estate  had  been  limited  to  her. 

12.  But  this  was  a  common-law  power,  and  the  doctrine  must 
not  be  carried  too  far  ;  for  in  every  case  of  a  power  to  appoint  to 
A.,  an  appointment  to  B.  in  trust  for  A  miglit  be  said  to  be  a 
valid  appointment  to  A.,  to  whom,  and  not  to  B.,  the  power  ex- 
tended. But,  generally  speaking,  the  real  object  could  not  take, 
and  the  appointment  would  be  void,  at  least  at  law.  In  Church- 
man V.  Harvey,  where  the  power,  which  operated  under  the  stat- 
ute and  ought  to  have  been  exercised  in  favour  of  the  wife  for 
life,  was  exercised  by  appointing  the  estate  to  trustees  for  her 
for  ninety-nine  years,  if  she  should  so  long  live,  it  was  held  to  be 
bad.  Wilmot,  Lord  Commissioner,  said,  that  the  aj)pointment 
being  to  trustees  furnished  a  further  objection.  Powers  were 
introduced  since  the  statute  of  uses  ;  they  operate  as  a  declara- 
tion of  uses,  which,  as  they  may  be  created  by  declaration,  so 
they  may  be  determined  in  the  same  manner.  The  feoffees  are 
seised  to  the  use  which  by  the  appointment  is  declared  to  the 
trustees,  and  a  super-addition  to  the  use  of  the  wife  is  void  at  law, 
being  a  use  upon  a  use. (re) 

{x)  Amb.  340.    See  Trollope  v.  Liaton,  1  Sim.  &  Stu.  477;  supra,  vol.  1,  p.  489. 


INACCURATE   APPOINTMENTS   TO    USES.  73 

13.  In  Bland  v.  Bland, (y)  in  a  strict  settlement  upon  the  first 
and  other  sons  of  the  marriage  in  tail,  there  was  a  proviso  giving 
to  the  father,  after  the  birth  of  a  son  of  that  marriage,  power  to 
reduce  such  son  to  be  tenant  for  life,  with  remainder  to  trustees 
to  preserve  contingent  remainders,  with  remainder  to  the  first 
and  other  sons  of  such  first  or  only  son  in  tail  male,  and  the  uses 
in  the  settlement  were  to  cease,  and  the  settlement  was  to  enure 
to  the  use  of  such  son  for  life,  with  remainder  to  two 
trustees  to  be  for  that  *purpose  therein  named,  and  [  *81  ] 
their  heirs,  during  the  life  of  such  son,  then  to  the  use 
of  the  first  and  other  sons  of  such  son  in  tail  male.  Lord  Hard- 
wicke  doubted  the  validity  of  the  power  (wliicli  point  is  now 
settled),  but  thought  it  unnecessary  to  decide  that  question,  be- 
cause he  was  of  opinion  that  the  power,  if  it  had  been  good,  was 
not  well  executed.  The  donee  had  by  his  will,  in  pursuance  of 
his  power,  "  made  and  appointed  his  son  John  to  Ijc  only  tenant 
for  life  of  the  premises,  with  remainder  to  his  heirs  male."  The 
Lord  Chancellor  said  that  these  powers  must  be  strictly  executed ; 
the  power  requires  that  he  do  declare  his  intention  to  reduce  the 
estate  to  the  son  into  an  estate  for  life,  with  a  remainder  to 
trustees  to  preserve  contingent  remainders,  and  after  his  decease 
to  his  first  and  other  sons  in  tail  male  ;  which  he  has  not  done. 
It  was  said  at  the  bar,  that  it  was  sufiicient  for  him  to  declare  his 
intention  of  altering  the  old  uses,  and  the  other  uses  would  take 
their  rise  from  the  settlement ;  but  that  is  not  sufficient,  and  it 
nmst  be  looked  upon  as  strictly  as  if  an  ejectment  were  brought, 
and  at  law  it  is  evident  this  would  have  amounted  to  an  estate 
tail  in  tlie  ancestor.  But  suppose  a  Court  would  construe  this  into 
an  estate  for  life  in  the  son,  with  remainder  to  his  first  and  other 
sons  in  tail,  then  it  would  not  be  good,  for  lie  re  are  no  trustees  to 
preserve  contingent  remainders.  It  had  likewise  been  said  that 
this  execution  should  be  construed  favourably,  because  it  was  re- 
served to  the  original  owner  of  the  estate  ;  but  a  Court  will  never 
supply  such  defective  execution  of  a  power,  unless  when  executed 
for  a  valuable  consideration,  or  in  support  of,  or  as  maintenance 
for  wife  or  children. 

14.  It  is  clear  that  the  nomination  by  the  donee  of  the  power 

(y)  2  Cox,  349. 

Vol.  IL  7 


74  SUGDEN   ON   POWERS. 

of  two  trustees  was  necessary  to  the  due  execution  of  it.  That 
was  required  by  tlic  power.  If,  however,  that  had  been  coini)lied 
with,  there  appears  to  be  ground  to  contend  that  the  donee's  de- 
claration was  a  suflicicnt  signification  of  his  intention 
[  *82  ]  tliat  the  estate  should  go  according  to  *the  power,  and 
then  the  settlement  itself  provided  for  the  uses  to  arise. 
The  distinctions  in  these  cases  are  but  thin.  An  intention  could 
not  be  collected  from  his  words  that  his  son  should  take  an  estate 
in  tail  male,  because  he  was  already  tenant  in  tail  male  under  the 
settlement,  and  therefore  to  give  a  strict  legal  interpretation  to 
the  words  would  render  the  appointment  altogether  nugatory. 

15.  In  Wykham  v.  AVykham,(c)  where,  as  we  have  seen,  the 
power  of  jointuring  authorized  an  a])pointment  to  trustees,  upon 
trust,  by  the  rents  and  ])rofits,  to  raise  and  pay  the  rent-charge 
for  the  wife  during  her  life  only,  and  the  power  was  exercised  by 
an  appointment  to  trustees  in  fee,  to  raise  and  pay  a  jointure  rent 
charge  to  the  wife  for  her  life  ;  and  the  donee,  the  husband,  cove- 
nanted that  he  had  good  right  to  make  the  appointment,  and  that 
the  trustees,  in  case  the  lady  should  survive  him,  should  after  his 
decease,  during  her  life  only,  quietly  enjoy  and  receive  so  much 
of  the  rents  as  should  be  sufficient  to  pay  the  rent-charge  :  it  was 
held,  that  the  appointment  in  fee  was  not  warranted  by  the 
power ;  and  the  question  then  arose,  whether  by  construction  the 
appointment  could  not  be  confined  to  the  lady's  life.  LordEldon 
observed,  that  this  power  was  to  grant,  convey,  limit  and  appoint 
to  trustees,  without  saying  to  them  and  their  heirs,  or  tlieir  exe- 
cutors, leaving  the  nature  and  quantity  of  the  estate  they  were 
to  take  open  to  the  construction  of  the  "person  who  was  to 
execute  the  power.  There  was  nothing  which  could  determine 
what  he  was  to  do,  except  by  reference  to  the  instrument  out  of 
which  the  power  arose,  the  estates  contained  in  that  instrument, 
and  the  purposes  for  which  the  power  was  given.  With  respect 
to  the  instrument  out  of  which  the  power  arose,  if  the  noncon- 
formity of  the  nature  of  the  estates  raised  l)y  the  execution  of  the 
power,  to  the  estates  expressed  in  the  instrument  by  which  the 
power  was  given,  was  of  itself  a  ground  to  say  that  the  per- 
son executing  the  power  had  not  attempted  to  give  a   larger 

(z)  18  Ves.  jun.  395. 


INACCURATE  APPOINTMENTS  TO  USES.  75 

*estate,  and  ought  to  cut  down  the  legal  effect  of  the  in-  [  *83  ] 
strunieut,  and  make  it  what  it  ought  to  be,  according 
to  the  intention  and  the  nature  of  the  instrument  out  of  which  the 
power  arises,  how,  lie  asked,  are  we  to  account  for  many  cases 
where  the  execution  was  capable  of  being  so  corrected  by  refer- 
ence to  the  instrument,  but  was  not  so  corrected  ? — In  another 
passage,  he  observed,  this  instrument  is  to  be  considered  in  two 
ways,  with  reference  to  itself,  and  to  the  instrument  giving  the 
power,  which  the  other  purports  to  execute  ;  but  if  an  instru- 
ment which  purports  to  be  the  execution  of  a  power  does  convey 
in  language,  the  legal  effect  of  which  goes  beyond  the  power, 
he  could  not  find  that  you  look  to  the  instrument  in  which  the 
power  is  given  in  order  to  correct  the  excess  at  law.  If  you  look 
to  tlie  executing  instrument  itself,  it  pur[)orts  to  be  a  grant  in  fee, 
and  it  is  a  deed.  It  purports  to  be  a  grant  in  fee,  for  purposes 
certainly  not  requiring  a  fee,  but  still  it  purports  to  Ijc  a  grant  in 
fee  ;  and  it  was,  he  thought,  difficult  to  maintain  that  if  a  man 
does  more,  Ijy  using  words  which  have  a  legal  cflFect,  than  is  neces- 
sary to  execute  the  purpose  he  professes  to  execute,  the  circum- 
stance that  he  uses  those  words  of  larger  legal  effect  than  is  re- 
quired, and  his  purpose,  shall  cut  down  the  legal  effect  of  the 
words  in  a  deed.  Unless  he  could  infer  that  the  estate  given  in 
this  instrument  to  trustees,  and  their  heirs,  is  not  a  fee,  as  it  was 
not  necessary  to  give  a  fee  for  the  purpose  for  which  the  instru- 
ment was  executed,  and  as  there  was  a  covenant  for  quiet  enjoy- 
ment only  during  the  life  of  tlie  wife,  and  as  it  might  disturb  the 
estates  which  were  subsequently  given  in  the  instrument  creating 
tlie  power  to  give  the  estate,  he  could  not  cut  down  the  legal 
effect  of  the  limitation  to  the  trustees  and  their  heirs. 

16.  Lord  Eldon,  addressing  himself  to  the  covenants  that  the 
appointor  had  a  right  to  make  such  grant,  and  that  the  trustees 
should  be  at  liberty  during  the  wife's  life  to  enter  and  take  as 
much  of  the  profits  as  would  be  sufficient  to  answer 
*the  jointure,  observed,  that  another  circumstance  had  [  *84  ] 
been  relied  ui)on,  and  fairly  relied  upon,  that  is,  the 
covenant ;  liut  where  a  person  executing  a  power  has  infinite 
difficulty,  considering  tlic  language  in  which  the  power  is  given, 
to  know  in  what  way  to  create  the  estates  whicli  are  to  be  created, 
it  is  going  much  too  far  to  say,  that  having  in  fact  given  a  larger 


76 


SUGDEN   ON   POWERS. 


estate  tlinn  was  necessary,  as  lie  covenants  for  quiet  enjoyment 
only  (liiiiiiti:  the  time  necessary  to  answer  the  bcnclicial  interest, 
that  covenant  shall  cut  down  the  legal  eflect  of  the  grant.  That 
he  apprehended  could  not  be  made  out,  nor  Avas  it  made  out  by 
any  ol"  the  cases  referred  to. 


SECTION  III. 

OF  EXCESS   IN   THE   CONDITIONS ,  ANNEXED   TO   THE   ESTATE. 


1.  Conditions  only,  void. 

2.  As  to  release  a  debt. 

8.  Or  to  allow  other  persons  to  share. 
4.  Payment   at  a  wrong  day,  that  direc- 
tion only,  void. 
6.  So  a  gift  over  in  a  certain  event. 
6.  Void  condition  confined  to  property. 


7.  Condition  that  the  gift  shall  be  a  satis- 

faction, void. 

8.  Chai-ge  of  debts  not  authorized,  that 

only  void. 

9.  Gift  to  an  object  for  other  purposes, 

void. 
12.  Valid  appointment  separated  from  in- 
valid ones  in  the  same  deed. 


1.  Where  conditions  are  aiuiexed  to  the'gift  not  authorized  by 
the  power,  the  gift  is  good,  and  the  condition  only  is  void,  so  that 
the  appointee  takes  the  fund  absolutely. 

2.  As,  if  an  appointment  should  be  made,  and  a  condition  an- 
nexed to  it,  that  the  appointee  shall  release  a  debt  owing  to  him, 
or  pay  money  over,  the  appointment  would  be  absolute,  and  the 

condition  only  would  be  void,  because  the  boundaries 
[  *85  ]  *between  the  excess  and  proper  execution  are  precise 
and  apparent,  (tt) 

3.  So  where  under  a  power  to  appoint  to  the  children  of  a 
first  marriage,  the  wife,  who  survived  and  married  again,  appoint- 
ed the  fund  amongst  all  her  children, 'and  declared  that  if  any 
one  of  her  cliildren  by  the  first  husband  should  refuse  to  share  the 
property  with  her  children  by  her  second  husband,  the  child  so 
refusing  should  not  have  any  jiart  of  the  trust  property  ;  and  in 
case  all  her  children  by  her  first  husband  should  refuse,  then  she 
bequeathed  the  whole  of  the  property  to  her  youngest  child  by 

(o)  See  2  Vcs.  664;  1  Atk.  564;  and  see  Burleigh  v.  Pearson,  1  Ves.  281;  Hewitt 
T.  Lord  Dacre,  2  Kee.  622. 


EXCESS  IN   CONDITIONS   ANNEXED   TO   THE   ESTATE.  7( 

her  first  husband.  This  ingenious  device  was  considered  void,  and 
as  there  were  four  chihlren  of  the  first  marriage,  and  three  of  the 
second,  the  appointment  was  supported  as  to  one-seventh  to  each 
of  the  first  four  children,  and  the  remaining  three-sevenths  vested 
in  them  also,  as  in  default  of  appointment.  (6) 

4.  So  if  the  power  be  only  to  give  the  property  unconditionally, 
and  it  be  exceeded  by  directing  the  portions  to  be  paid  at  the 
age  of  twenty-one  or  day  of  marriage,  the  appointment  will  be  re- 
formed so  as  to  make  the  portions  vest  at  once.(c) 

5.  So  if,  under  a  power  to  appoint  an  estate  to  an  ol>ject  in  tail, 
or  in  fee,  the  donee  appoint  to  him  in  tail  or  fee,  with  a  proviso, 
that  if  he  died  under  twenty-one,  without  issue,  or  the  like,  the 
estate  shall  go  over,  the  first  appointment  will  be  good,  and  the 
qualification  annexed  to  it  will  be  void. 

G.  Where  a  person  by  mistake  supposed  his  power  to  extend 
over  all  the  funds  in  the  settlement,  and  annexed  a  hotchpot 
clause  to  his  appointments,  it  was  held  to  extend  to  the 
portions  not  subject  to  the  power,  (i/)     But  there  *the  [  *86  ] 
same  objects  (subject  to  the  power  over  part)  were  en- 
titled to  Ijoth  of  the  funds  in  settlement. 

7.  In  the  case  of  Roberts  and  Dixall(e)  the  father's  estate 
was  charged  with  1000/.  for  younger  children,  and  he  had  a  power 
over  his  wife's  estate,  in  favour  of  the  younger  children.  He  gave 
the  only  child  3,000/.  which  he  declared  should  be  in  satisfaction 
of  the  1,000/.  charged  on  his  own  estate,  and  in  pursuance  of  this 
power  he  charged  the  3,000/.  on  his  wife's  estate.  Lord  Hard- 
wickc  said,  that  where  a  gift  was  to  discharge  a  former  debt, 
something  should  move  from  the  giver,  but  here  the  whole  was 
to  arise  out  of  his  wife's  estate,  and  therefore  to  satisfy  the 
father's  covenant  as  to  the  charge  on  his  own  estate,  this  declara- 
tion was  entirely  void  ;  however,  as  his  intention  was  only  to  give 
his  daughter  3,000/.,  Lord  Hardwicke  decreed  that  2,000/.  ought 
to  be  raised  upon  the  wife's  estate,  and  the  other  1,000/.  out  of 
the  father's  estate. 

8.  Perhaps  we  should  in  this  place  notice  a  point  which  arose 

{b)  Saddler  v.  Tratt,  G  Sim.  632;  Palsgrave  v.  Atkinson,  1  Coll.  190. 

(c)  Dillon  V.  Dillon,  1  Ball  and  Beatty,  77. 

{d)  Ward  V.  Firmin,  11  Sim.  235. 

(e)  2  Eq.  Ca.  Abr.  6G8,  pi.  19;  S.  C.  App.  No.  17. 

7* 


78  SUGDEN   ON   POWERS. 

in  Roljinson  v.  Hardcastlc,(/)  l)ut  was  not  decided.  The  donee 
of  tlic  power  appointed  the  estate  by  his  will,  charged  unlit  the 
pai/Dient  of  his  dchls,  Avhieh  he  liad  no  anthority  to  do,  and  Mr. 
Justice  Buller  said,  that  this,  perhaps,  might  render  the  lahole 
execution  of  tlie  })ower  void.  There  is,  however,  no  autliority 
for  this.  If  the  estate  had  been  given  to  tlie  object  of  the  power, 
upon  condition  that  he  paid  the  donee's  debts,  the  appointment 
would  have  been  good  even  at  law,  and  the  condition  void.  This 
case  is  in  effect  the  same,  and  would,  it  should  seem,  receive  a 
similar  decision.  At  any  rate,  in  equity,  the  excess  only  in  the 
appointment  would  be  void.  Where  there  is  other  property  com- 
prised in  the  gift  whicli  the  donee  has  a  right  to  charge,  that  will 
remove  all  olycction. 

9.  But  where  the  gift  by  will  under  a  power  was  of  a 
[  "87  ]  sum  'of  2000/.  to  the  testator's  daughter,  to  have  him 
properly  buried,  and  to  pay  what  small  debts  he  might 
owe  at  his  decease,  it  was  held  that  the  gift  could  not  be  separat- 
ed from  the  purpose  expressed,  and  that  the  appointment  was 
therefore  bad.(;^) 

10.  Where  the  fund  is  sufficient  to  answer  the  appointment, 
the  latter  will  be  valid,  although  the  donee  of  the  power  by  mis- 
take supposed  his  power  to  have  a  wider  range  over  property  ; 
and  in  like  manner  the  appointment  will  be  valid,  ^ro  tanto,  if  the 
fund  prove  partially  deficient. (/i) 

11.  We  have  already  had  occasion  to  consider  the  converse  of 
the  cases  just  discussed,  viz.  where  an  interest  can  be  granted 
short  of  that  authorized  by  the  power. (i) 

12.  This  subject  must  not  be  dismissed  without  observing  that 
a  valid  appointment  will  be  sustained,  although  confounded  in  the 
same  deed  with  other  subjects  not  relating  to  it.  In  Lord  Con- 
way's case  it  appeared  that  he,  having  power  to  grant  leases  of 
his  estate,  by  one  instrument  granted  several,  some  of  which  were 
not  within  the  power ;  and  though  all  were  by  the  same  instru- 
ment, they  were  considered  as  several  leases,  and  it  was  sent  to 
the  Master  to  separate  them.  (A;) 

(/)  2  T.  Rep.  241.  See  Bailey  v.  Lloyd,  5  Russ.  330,  where  there  was  other  pro- 
perty; Wallop  v.  Lord  Portsmouth,  App.  No.  11. 

{g)  Hay  V.  Watkins,  3  Bro.  &  War.  339.  (A)  Wade  v.  Firmin,  11  Sim.  235. 

(i)  Vide  supra,  vol  1,  p.  494.  (/r)  2  Ves.  645,  cited. 


EQUITABLE  RELIEF   AGAINST   DEFECTS. 


79 


*CnAPTER  X. 


[*88] 


OP   EQUITABLE  RELIEF     IN   FAVOUR    OF     DEFECTIVE     EXECUTIONS    OP 

POWERS. 


SECTION  I. 


WHERE   THERE  IS   A   MERITORIOUS  CONSIDERATION  IN  THE  APPOINTEE, 


1.  Origin   of  jurisdiction:     confined    to    31. 
equity.  32. 

6.  Stanils  on  the  same  ground  as  surren- 
ders of  copyholds.  34. 

9.  Purchaser,  mortgagee,  lessee,  relieved.    35. 

10.  Creditor  also. 

11.  Wife  and  child  also.  [37. 

12.  Charity  also.  |41. 

13.  Husband  not  relieved. 

14.  Natural  child  not.  i  43. 

15.  Grandchild  not. 

16.  Father,      mother,     brother,      sister,    45. 

nephew,  cousin,  not.  47. 

17.  Volunteer  not. 

18.  Legal     consequences     not     relieved 

against.  48. 

19.  Detective    appointment   by    married 

•woman  aided.  40. 

21.  Sir  Thomas  Pluraer's  opinion.  1 

24.  Creditor,  &c.  must  be  such  of  donee,  ]  50. 

semblc.  | 

25.  Observations  on  Wilkie  v.  Holmes. 

26.  Defective  execution  of  a  power  of  re-  j 

vocation  not  aided  for  the  settlor  | 
himself.  i 


No  relief  indirectly  for  creditors. 

Claimant  must  have  a  preferable 
equity. 

Prior  appointee  may  become  a  trustee. 

Purch.aser  from  an  appointee  claiming 
relief  not  entitled  to  higher  equity. 

Pvelief  granted  against  puichasers. 

Relief  granted  although  the  settlement 
was  voluntary. 

Whether  a  surrender  can  be  supplied 
against  an  heir  unprovided  for. 

Application  of  the  doctrine  to  powers. 

Relief  may  be  given,  although  against 
parties  having  equal  equities,  as 
children. 

Execution  of  power  by  donee  who  has 
covenanted  to  pay  olfincumbrances. 

Relief  against  damages  recovered  upon 
executing  a  valid  appointment. 

No  relief  under  the  Act  abolishing  re- 
coveries against  defective  execu- 
tions of  the  authorities  or  against 
protector. 


1.  We  have  before  seen  that  powers  took  their  rise  before  the 
Statute  of  Uses,  and  were  then  sanctioned  and  protected 
by  equity  only ;  nor  did  equity  suflx!r  the  statute  to  *de-  [  *89  ] 
prive  it  of  this  valuable  branch  of  its  jurisdiction.     At 
law,  the  omission  of  any  circumstance  required  to  the  execution 
of  a  power  was  deemed  fatal ;  but  equity,  where  there  was  a 


80  SUGDEN   ON   POWERS. 

good  or  a  valuable  consideration,  interposed  its  aid,  and  support- 
ed the  defective  execution  ol'  tlie  power. (1) 

2.  It  was  observed  by  the  Court  in  Coventry  v.  Covcntry,(a) 
that  after  the  statute  of  uses  the  courts  of  common  law  held  that 
powers  in  derogation  of  estates  executed  were  to  be  taken  strict- 
ly, and  therefore  if  not  i)ursued,  they  would  not  impeach  or  de- 
stroy an  estate  already  executed  l)y  legal  conveyances.  But  in 
the  courts  of  ecjuity  they  soon  found  that  the  construction  was  too 
artilicial,  and  not  according  to  natural  equity,  and  therefore  they 
construed  these  powers  as  a  reservation  of  so  much  of  the  ancient 
dominion  of  the  estate,  to  be  under  the  control  of  the  tenant  for 
life.  Ef  rtijiis  est  dare  illiiis  est  disponere,  and  as  often  as  any 
such  dominion  is  reserved,  the  tenant  for  life  may  contract  about 
it.  When  a  marriage  contract  is  made  in  contemplation  of  the 
execution,  it  was  a  real  lien  on  the  estate,  and  tlicrcibrc  a  court 
of  equity  may  decree  it  against  the  remainder-man,  because  he 
claims  inider  the  creator  of  the  i)ower,  whose  intention  was  that 
such  a  charge  should  be  induced  on  the  land. 

3.  Before  the  limits  to  this  equitable  relief  were  fully  establish- 
ed, it  was  speciously  argued,  that  altliough  the  circumstances  re- 
quired to  a  power  must  be  observed  at  law,  yet  when  a  man  hath 
a  power  over  an  estate,  those  circumstances  are  only  a  guard  upon 
himself  that  he  may  not  be  surprised  into  a  sudden  disposition  of 
it.  But  when  deliberately  and  solemnly  he  hath  done  an  act 
whereby  he  disposeth  of  this  estate,  but  there  wants  some  little 
ceremony  or  circumstance,  such  as  the  not  tendering  12d.  or  the 
like,  a  court  of  equity  ouglit  to  supply  such  a  defect,  to  support 

this  solemn  intention  to  dispose  of  it ;  for,  plain  it  is,  he 
[  *00  ]  is  not  surprised  into  this  act,  and  so  the  reason  for  *those 

circumstances  fails,  and  they  need  not  be  strictly  observ- 
ed. But  to  this  it  was  answered  and  resolved,  that  powers  were 
similar  to  conditions  at  common  law  ;  and  as  a  man  must  perform 
a  condition  at  common  law  to  entitle  him  to  re-enter,  he  must 
execute  his  power  to  entitle  him  to  a  revocation.  And  a  Court  of 
equity  can  no  more  let  a  man  in  to  defeat  an  estate  upon  a  power 
of  revocation,  without  a  due  execution  of  the  power,  than  the 

(ft)  1  Str.  601. 


(1)  1  Story's  Eq.  Jur.  §§  170,  171. 


EQUITABLE   RELIEF   AGAINST   DEFECTS.  81 

conxraon  law  could  let  in  a  man  to  defeat  an  estate  upon  a  condi- 
tion, without  performance  of  the  condition  ;  or  than  a  court  of 
Equity  can  permit  a  man  to  defeat  a  voluntary  conveyance  without 
a  power  of  revocation  ;  for  it  is  all  but  a  condition  which  must 
be  performed,  or  no  advantag'e  taken  of  it ;  and  a  court  of  ccjuity 
may  do  great  things,  but  they  cannot  alter  things,  or  make  them 
to  operate  contrary  to  their  essential  natures  and  properties.  (6) 

4.  In  modern  times  it  has  been  contended,  that  whatever  is  an 
equitable^  ought  to  Ijc  a  legal,  execution  of  a  power  ;(c;)  because, 
as  Lord  Mansfield  observed,  there  should  be  a  general  rule  of  pro- 
perty ;  and  if  the  courts  of  equity  say,  we  will  presume  that  where 
the  execution  is  for  a  meritorious  consideration,  a  strict  adlierence 
to  the  precise  form  was  not  intended,  and  therefore  it  is  not 
necessary,  the  moment  the  same  rule  is  fixed  and  adopted  at  law, 
every  man  who  creates,  and  every  man  who  is  to  exercise  a  power 
understands  what  he  is  to  do  ;  (il)  and  he  considered  that  where 
there  is  a  meritorious  consideration,  it  was  not  necessary  even  at 
law  strictly  to  adhere  to  the  precise  form.(e)  The  vice  of  this 
reasoning  is,  that  equity  itself  does  hold  the  power  well  executed, 
unless  the  form  is  adhered  to  ;  but  where  the  execution  is  for  a 
meritorious  consideration,  compels  the  person  seised  of 

the  estate  in  default  of  execution  *of  the  power  to  make  [  *91  ] 
good  the  defect — a  jurisdiction  which  courts  of  law  can- 
not assume,  because  they  have  no  means  of  enforcing  its  observ- 
ance. At  the  present  day,  however.  Lord  Mansfield's  doctrine  is 
completely  exploded  :(/)  equity  alone  can  relieve  against  defec- 
tive excution  of  a  power,  and  that  only  whcie  there  is  a  meritori- 
ous consideration  in  the  person  applying  for  tlie  aid  of  the  Court. 

5.  Sir  William  Grant,  with  his  usual  precision,  strongly  ob- 
served,(o*)  that  it  is  difficult  to  discover  a  sound  principle  for  the 
authority  which  equity  assumes  for  aiding  a  defective  execution 
in  certain  cases.  If  the  intention  of  tlie  party  possessing  the 
power  is  to  be  regarded,  and  not  the  interest  of  the  party  to  be 
affected  by  the  execution,  thai  intention  ought  to  be  executed 
wherever  it  is  manifested  ;  for  the  owner  of  the  estate  has  noth- 

(6)  See  3  Cha.  66,  77.  107,  108. 

(c)  Zouch  V.  Woolston,  2  Burr.'  1136. 

{d)  Cowp.  2r,7.         (e)  Ibid.  269. 

(/)  See2H.  Blackst.  139. 

(g")  7  Ves.  jun.  506;  and  see  15  Ves.  jun.  51. 


QZ  SUGDEN    ON   POWERS. 

inp;  to  do  with  the  purpose  ;  to  him  it  is  indifferent  "whether  it  is 
to  be  exercised  for  a  creditor  or  a  volunteer.  But  if  the  interest 
of  the  party  to  be  aftected  by  the  execution  is  to  be  regarded* 
why,  in  any  case,  exercise  the  power,  except  in  the  form  and 
manner  prescribed  ?  He  is  an  absolute  stranger  to  the  equity 
between  the  possessor  of  the  power,  and  the  party  in  whose 
favour  it  is  intended,  to  be  executed.  As  against  the  debtor  it  is 
riglit  that  he  should  pay. (I)  But  what  equity  is  there  for  the 
creditor  to  have  the  money  raised  out  of  the  estate  of  a  third 
person,  in  a  case  in  wliich  it  was  never  agreed  that  it  should  be 
raised^::'  The  owner  is  not  heard  to  say  it  will  be  a  grievous 
burthen,  and  of  no  merit  or  utility.  He  is  ti)ld  the  case  provided 
for  exists  ;  it  is  formally  right ;  he  has  nothing  to  do  with  the 
purpose.     But  upon  a  defect  which  this  Court  is  called  upon  to 

sujiply,  he  is  not  permitted  to  retort  this  argument,  and 
[  *92  ]  to  say  it  is  not  formally  right ;  *the  case  provided  for 

does  not  exist ;  and  he  has  nothing  to  do  with  the  pur- 
pose. In  the  sort  of  equity  upon  this  subject  there  is  some  want 
of  equality.  But  the  rule  is  j)erfectly  settled,  and  though  per- 
haps with  some  violation  of  principle,  Avith  no  practical  incon- 
venience. 

6.  In  Chapman  v.  Gibson, (A)  Lord  Alvanlcy  laid  it  down  that 
the  execution  of  a  power  and  a  surrender  of  a  copyhold  go  hand 
in  hand  precisely  on  the  same  ground,  consequently  the  same 
relief  is  to  be  granted  in  cases  of  defective  execution  of  a  power 
and  of  the  grant  of  a  surrender  of  a  copyhold. 

7.  In  a  case  in  Ireland(/)  where  the  question  was,  whether 
equity  could  enforce  a  specific  execution  of  a  contract  for  a 
meritorious  consideration  resting  in  fieri,  the  Chancellor  observed, 
that  Lord  Alvanlcy  had  stated  that  he  thought  the  execution  of  a 
power  and  a  surrender  of  copyhold  went  hand  in  hand,  precisely 
on  the  same  ground.  Now  equity  always  aids  a  defective  execu- 
tion of  a  i)ower,  voluntarily  executed  in  favour  of  a  wife  or  child, 
as  depending  upon  the  natural  obligation.     It  did  not  follow  that 

(h)  3  Bro.  C.  C.  229;  and  see  17  Ves.  jun.  297. 

(i)  Ellis  V.  Nimmo,  Llo.  &  Goo.  Rep.  t.  Sugden,  pp.  340,  341.  348;  see  Holloway 
V.  Hendington,  8  Sim.  324;  Gannon  v.  White,  2  Ir.  Eq.  Rep.  208. 

(1)  The  question  was,  whether  the  Court  would  execute  a  power  in  favour  of 
creditors. 


EQUITABLE  RELIEF  AGAINST  DEFECTS.  83 

the  defect  -would  be  aided  against  the  husband  or  father  himself, 
because  equity  generally  does  not  aid  defective  settlements,  and 
in  tliose  cases  there  is  no  contract.     But  even  though  there  be  no 
contract,  equity,  with  some  violation  of  principle,  as  Sir  W.  Grant 
had  pointed  out,  aids  the  defect  against  the  person   in  wliom  the 
estate  is  vested,  not  universally,  l)ut  only  in  favour  of  a  meritori- 
ous* consideration.     Defective  executions  of  powers,  he  observed 
on  another  day,  were  said  to  ])e  analogous  to  the  case  before  him. 
Such  defective  executions  and  defective  surrenders  of  copyholds 
strictly  depend  upon  the  same  rules.     Now  in  these  cases  the 
Court  executes  the  intention  of  the   settlor  cither  against  his 
representatives  or  the  i)erson  taking  the  estate,  in  de- 
fault *of  a  valid  execution  of  the  power  or  surrender  of  [  *93  ] 
the  copyholds,  where  there  is  a  good  consideration.     If 
there  be  such  a  consideration,  the  party  taking  the   estate  is 
not   permitted  to    rely    upon    the    defect,   but   the    Court   will 
eflectuate  tlic  intention  of  the  settlor,  and,  speaking  generally, 
this  equity  is  enforced,  not  against  the  settlor  himself,  but  in 
his  favour,  that  is,  in  the  execution  of  his  intention,  and  at  the 
expense  of  a  third  party.     That   rule   is  now  settled.     But  the 
case  before  him  did  not  rest  exactly  upon  the  same  grounds  as 
defective  executions  of  powers  ;  as  in  cases  like  the  present  there 
was  a  contract,  whereas  the  former  do  not  ordinarily  arise  out  of 
a  contract,  but  depend  upon  an  intention  to  settle. 

8.  Thus,  then,  the  jurisdiction  stands,  and  we  may  inquire 
what  amounts  to  such  a  consideration  as  will  enable  equity  to 
interpose  its  aid  in  favour  of  a  defective  execution  of  a  power. 

0.  The  aid  of  equity  then  will  lie  atlbrded  to  a  ])urchaser,(A;) 
which  term  includes  a  mortgagee  and  a  lessee. (1)(/)(1) 

10.  And  to  a  creditor. (w)(l) 

(t)  Fothergill  v.  Fothergill,  2  Frecm.  257;  Anon.  ib.  221;  3  Cba.  Ca.  68;  Cowp. 
267. 

(/)  Barker  v.  Hill,  2  Clia.  Rep.  113;  Bradley  v.  Bradley,  2  Vern.  163;  Taylor 
T.  miciler,  2  Vern.  664;  ami  Jennings  v.  Muore,  ib.  GO'J;  Reicl  v.  Sbergold,  10 
Ves.  jun.  370. 

(m)  Fothergill  y.  Fothergill,  ubi.  supra,  3  Cha.  Ca.  80;  Pollard  v.  Greenvil,  1 
Cha.  Ca.  10;  1  Cha.  Rep.  ^8;  AVilkes  v.  llolmca,  0  Mod.  485;  Ilhell  v.  Beane,  1  Ves. 
215;  Bixby  v.  Eley,  2  Bro.  C.  C.  325;  2  Dick.  6'J8. 

(I)  The  coses  in  Italics  were  decided  upon  Copyholds. 

(1)  See  1  Story's  Eq.  Jur.  §  169. 


84  SUGDEN   ON    POWERS. 

11.  The  like  aid  will  be  afl'orded  to  a  wife,(»)  and  to  a  legiti- 
mate child  ;  (o)  for  wives  and  children  are  in  some  degree  con- 
sidered as  creditors  l)y  ualure  :{/))  (1)  and  although  to  constitute 

a  valuable  consideration  for  a  selllemcnt  on  a  wife  or 
[  *94  ]  Vhild,  it  nuist  be  made  before  marriage,  yet  the  marri- 
age and  blood  are  meritorious  considerations,  and  claim 
the  aid  of  a  court  of  C(]uity  in  su])j)ort  of  a  defective  execution 
of  a  power  in  their  favour,((/)  although  the  power  was  executed 
after  the  marriage. 

12.  The  like  equity  is  extended  to  a  charity. (r)  Lord  North- 
iugton  laid  it  down  that  the  uniform  rule  of  the  Court  before,  at 
and  after  the  statute  of  Elizalicth,  was,  where  the  uses  are  chari- 
table and  the  person  has  in  hiijisclf  full  power  to  convey,  to  aid 
a  defective  conveyance  to  such  uses. (5) 

13.  But  it  has  been  decided  that  a  defective  execution  of  a 
power  by  a  wife  cannot  be  aided  in  favour  of  her  husband  ;(/)(2) 
nor  can  a  disposition  by  a  married  woman  in  conjunction  with  her 
husband,  without  the  solemnities  required  by  the  power,  although 
the  trustees  of  the  fund  act  upon  it,  be  supported  on  the  ground 
of  the  intention  and  the  power  to  do  the  act;  for  the  ceremonies 
in  such  a  case  are  introduced  for  the  express  purpose  of  protecting 
the  wife  against  the  husband,  and  are  matters  of  substance  and 
not  of  form.(w) 

14.  Nor  is  the  equity  extended  to  a  natural  child. (r) 

(n)  Cowp.  267;  Fothergill  v.  Fothergill,  2  Freem.  25G;  Lady  Clifford  v.  Earl  of 
Burlington,  2  Vera.  397;  Coventi-y  v.  Coventry,  2  P.  Wms.  222;  and  see  ib.  705;  2 
Cox,  357. 

(o)  Sarth  v.  Lady  Blanfray,  Gilb.  Eq.  Rep.  IGO;  Sneed  v.  Sneed,  Ambl.  64; 
Cowp.  264,  265,  cited;  and  see  Cowp.  267. 

(p)  Barnard,  C.  C.  107. 

(g)  Fothergill  v.  Fothergill,  2  Freem.  256;  Hervey  v.  HerYey,  1  Atk.  561;  Church- 
man V.  Hervey,  Ambl.  335. 

(r)  Vide  supra,  vol.  p.  254. 

(s)  Attorney-General  v.  Tancred,  1  Eden,  10;  Ambl.  351;  Attorney-General  v. 
Sibthorpe,  2  Russ.  &  Myl.  107. 

(/)  Watt  v.  Watt,  3  Ves.  jun.  244;  Moodie  v.  Reid,  1  Madd.  516;  and  see  Sargeson 
V.  Sealey,  2  Atk.  412. 

(«)  Hopkins  V.  Myaall;  2  Russ.  &  Myl.  86. 

(i)  Fursaker  v.  Robinson,  Prec.  Cha.  475;  Tudor  v.  Anson,  2  Ves.  582. 

(1)  See  1  Story's  Eq.  Jur.  §  169. 

(2)  1  Story's  Eq.  Jur.  §  170. 


HUSBAND,   NATUEAL   CHILD,    ETC.    NOT   AIDED.  85 

15.  Nor,  as  it  lias  at  lengtli  been  determiued,  to  a  grandchild. (.y) 

16.  Neither  will  it  extend  to  a  fathcr(:w)  or  mother, 

or  *brothcr  or  sister  even  of  the  whole  blood,(a)  much  [  *95  ] 
less  of  the  half-blood, (Z>)  or  to  a  nephew,(c)  or  cousin. (t?) 

17.  And  a  fortiori,  it  cannot  be  afforded  to  a  mere  volun- 
teer, (e)(1) 

18.  Of  course  there  can  be  no  aid  in  equity  against  the  legal 
consequences  of  an  a])])ointnicnt ;  therefore  if  an  appointment  be 
made  by  will,  and  the  appointee  die  in  the  lifetime  of  the  testator, 
the  gilt  will  lapse,  whatever  might  have  been  the  intention,  and 
although  the  power  might  have  been  executed  by  act  inter  vivos. 
In  the  report  of  Wilkie  v.  Holmes, (/)  where  the  will  in  execution 
of  the  power  was  defectively  executed.  Lord  Hardwicke  said,  In 
the  case  of  ToUett  v.  Toilet  the  husband  had  a  power  to  make  a 
jointure  to  his  wife  by  deed ;  he  made  it  by  Avill :  this  defect  was 
set  right  in  equity ;  whicU  determination  goes  a  great  way  to 
decide  the  present  question  ;  for  why  may  not  this  defect  be  sup- 
])lied,  as  in  that  case,  a  deed  be  changed  into  a  will  ?  In  the  case 
of  Duke  of  Marlborough  v.  The  Earl  of  Carlisle,  M.  T.  1750, 
there  was  no  consideration  of  merit  to  make  the  Court  supply  the 
defect.  It  seems  that  at  the  moment  Lord  Hardwicke  must  have 
considered  that  a  Avill  miglit,  if  there  was  a  meritorious  considera- 
tion, be  supported  as  a  deed  in  equity  against  the  legal  eflfect  of  a 
will.  For  the  case  referred  to  is  The  Duke  of  Marlborough  v. 
Lord  (iodolphin,  and  there  the  gifts  lapsed  by  the  death  of  the 

(7/)  See  Kettle  v.  Townsend,  1  Salk.  187;  Watts  v.  Bullas,  1  P.  Wms.  GO;  Free- 
stone V.  Uunt,  ib.  61,  n.;  3  Bro.  C.  C.  231;  Fursaker  v.  Robinson,  Prcc.  Cha.  477; 
Tudor  V.  Anson,  2  Ves.  582;  Cliapman  v.  Gibson,  3  Bro.  C.  C.  229;  Hills  v.  Down- 
ton,  5  Vcs.  jun.  567;  Perry  v.  Whitehead,  6  Ves.  jun.  544;  and  see  1  Watk.  Copyh., 
136.138. 

(2)  Sloane  v.  Lord  Cadogan,  App.  No.  10. 

(a)  Goodwyn  v.  Goodwyn,  1  Ves.  228. 

(6)  Goring  v.  Nash,  3  Atk.  189,  which  overruled  Waits  v.  Bullas,  ubi  sup. 

(c)  Strode  v.  Russell,  2  Vcrn.  621;  Marston  v.  Gowan,  3  Ero.  C.  C.  170;  and 
see  Piggot  V.  Penrice,  Com.  250. 

{«/)   Tudor  V.  Anson,  2  Ves.  582. 

(e)  Smith  v.  Ashton,  1  Freem.  309.  See  3  Cha.  Ca.  113.  126;  Sargeson  v.  Sealey, 
2  Atk.  415;  Godwin  v.  Kilsha,  Ambl.  684;  Reg.  Lib.  A.  1768,  fol.  495. 

(/)  9  Mod.  486. 

(1)  1  Story's  Eq.  Jur.  §  176. 
YOL.   II.  8 


86  SUGDEN   ON   POWERS. 

leg.atccs  in  the  lifetime  of  the  testatrix.  But  no  merit  in  the 
legatees  could  have  enabled  a  Court  of  Equity  to  support  the 
lapsed  legacies.     In  the  case  of  Toilet  v.  Toilet  the  donee  might 

liave  aj^pointed  by  deed,  Avith  a  power  of  revocation. 
[  "91)  ]  He  *appointed  by  will,  which  is  in  its  nature  revocable. 

It  was  not  attempted  to  give  to  the  will  the  irrevocable 
character  of  a  deed. 

11».  To  tlie  granting  of  tlic  relief  it  is  only  necessary  that  the 
person  executing  the  power  defectively  should  have  ability  to  raise 
the  estate  if  tlic  jiowcr  had  been  ])rop('rly  jmrsucd,  and  that  the 
appointee  sliould  be  one  of  the  favoured  classes.  A  defective 
appointment  tlicrcfore  by  a  married  woman  will  be  aided  in  just 
the  same  manner  as  if  slie  wassvi  juris;  and  as  to  the  extent  of 
her  power  she  is  sui  juris,  it  would  seem  that  a  contract  by  her 
to  do  an  act  within  her  power  would  Im3  binding  upon  her  and 
upon  the  person  entitled  in  default  of  ai)pointment. 

20.  Even  where  a  married  woman  executed  a  power  of  leasing 
defectively,  as  a  security  for  a  del)t,  and  afterwards  entered  and 
received  the  profits,  although  the  defect  was  one  that  could  not 
be  supplied,  yet  the  estate  attempted  to  be  created  was  treated  as 
binding  upon  her,  and  she  was  made  answerable  for  the  profits 
she  received,  (g-) 

21.  But  Sir  Thomas  Plumcr,  in  a  case  before  him,  inquired 
whether  tliere  was  any  case  in  which  a  husband  and  wife  having 
a  power  of  appointment  by  deed  over  the  wife's  estate,  a  paper 
not  executed  modo  et  forma  pursuant  to  the  power,  was  lield  to 
take  effect  as  an  appointment.  With  a  married  woman,  he  said, 
there  can  be  no  binding  contract :  the  instrument  is  not  good  as 
an  agreement,  then  how  can  it  be  said  to  bind  her  ?  She  had  a 
power  to  convey  by  deed,  attested  by  two  witnesses ;  her  disability 
as  a  married  woman  was  taken  away  as  to  that  mode  of  proceed- 
ing, and  she  might  by  an  instrument,  executed  with  the  required 
formalities,  point  out  the  uses  to  which  the  estate  was  to  be  con- 
veyed. But  where  the  instrument  is  not  executed  according  to 
the  power,  it  is  nothing  but  an  agreement  signed  by  a  married 

Avoman,  and  as  an  agreement,  is  invalid.     This  was  a 
[  *97  ]  point  upon  which  he  did  not  mean  to  "give  a  definitive 

(g-)  Pollard  V.  Greenvil,  1  Cha.  Ca.  10. 


DEFECTIVE   APPOINTMENT  BY   MARRIED   "WOMAN,    AIDED.  87 

opinioiij  because  it  was  not  necessary  for  the  decision  of  the  cause  ; 
but  he  felt  that  there  would  be  very  great  difficulty  in  extending 
the  doctrine  of  the  Court  as  to  defective  executions  to  instruments 
signed  by  married  women :  it  would  be  introducing  quite  a  new 
line  of  cases.  The  power  gives  a  competency  to  act,  with  certain 
protections ;  but  it  was  a  very  weighty  question  whether  it  could 
be  held  that  that  gave  a  general  competency. (/<) 

22.  These  observations  were  extra-judicial,  and  it  is  clear  that 
they  were  not  intended  to  apply  to  cases  of  defective  executions 
as  well  as  to  contracts  resting  in  fieri.  It  would  indeed  be  diffi- 
cult to  distinguish  the  cases  upon  the  reasoning;  for  if  the 
woman's  disability  is  only  removed  modo  et  forma,  as  prescribed 
by  the  power,  then  a  sale  and  actual  conveyance  to  a  purchaser 
defectively  executed  would  not  be  aided  in  equity,  nor  of  course 
would  a  defective  execution  in  favour  of  a  child ;  but  it  admits  of 
no  doubt,  that  a  defective  execution  of  a  power  by  a  married 
woman  may  be  aided,  (i)  In  the  case  of  a  contract  by  her,  the 
relief  it  granted  would  be  against  herself.  In  the  common  case 
of  a  defective  execution  for  a  favoured  object,  the  relief  would  be 
against  the  person  taking  in  default  of  appointment. 

23.  In  Stead  v.  Nelson, (7^)  a  contract  under  her  hand  to  secure 
a  debt  by  mortgage  by  a  married  woman,  having  a  legal  estate 
for  life  for  her  separate  use,  with  power  to  appoint  it  by  writing 
under  hand  and  seal,  was  held  to  be  Ijinding.  The  case  of  Martin 
V.  Mitchell  was  not  adverted  to ;  and  although  she  had  an  ex- 
press power  to  appoint,  yet  the  property  was  settled  to  her  sepa- 
rate use. 

24.  The  character  of  purcliaser,  wife,  creditor,  child,  must 
be  borne  by  the  party  claiming  relief  in  relation  to  the 

donee  of  the  power,  and  not  to  the  person  creating  *the  [  *98  ] 
power.     Lord  Hardwicke  indeed  supported  a  defective 
execution  of  a  power  Ijy  a  wife,  for  the  payment  of  her  deceased 
husband's  debts  as  well  as  her  own.(/)     The  power  was  created 
by  their  marriage  settlement,  for  the  survivor  of  them  by  will  to 

(/.)  Martin  v.  Mitchell,  2  Jac.  &  Walk.  413.  See  Dillon  v.  Grace,  2  Scho.  &  Lef. 
456. 

(t)  See  Doe  v.  Weller,  7  Term  Rep.  480. 

(/f)  2  Beav.  245;  \Vainwri<rht  v.  Hardisty,  2  Beav.  3G3. 

(/)  Wilkie  V.  Holmes,  9  Mod.  405;  1  Dick.  1G5. 


88  SUGDEN    ON   POWERS. 

raise  a  sum  of  monoy  for  the  purpose  of  ]>ayiu_o-  tlic  debts  of  the 
husbaud  aud  wife,  or  cither  of  (hem,  or  making-  a  provision  for  the 
younger  children  of  ihr,  niuniage.  He  said,  it  had  been  objected 
that  tlie  debts  wliicli  were  to  be  paid  by  means  of  tbis  j)()W(>r  were 
the  debts  of  the  hus)>and,  wliereas  tlie  estate  was  originally  the 
wife's  ;  but  those  debts,  he  observed,  were  expressly  provided  for 
by  the  deed  of  settlement. 

25.  This  seems  to  introduce  a  new  principle.  If  the  power 
had  been  general,  an  execution  of  it  in  favour  of  her  husband's 
creditors,  if  defective,  could  not  have  been  supported  in  ccpiity  ; 
for  there  was  no  contract  or  consideration,  and  the  creditors  had 
no  claim  upon  the  wife.  If  the  naming  of  the  object  or  the  party 
in  the  poioer  varies  the  case,  then  the  principle  of  the  rule  is  not 
followed.  Unless  the  power  would  authorize  the  appointment  if 
duly  made,  no  defect  can  be  aided.  Where  is,  then,  tlie  distinc- 
tion between  a  power  authorizing  generally  an  appointment  to 
any  one,  aud  a  defective  appointment  under  it  to  a  volunteer,  and 
a  power  expressly  authorizing  an  appointment  to  a  volunteer 
nomination  to  whom  a  defective  appointment  is  made  ?  In  each 
case  the  power  authorizes  the  act :  in  neither  does  it  confer  any 
right  upon  the  object  of  the  power.  It  simply  enables  the  donee 
to  confer  a  benefit  upon  him.  In  either  case,  therefore,  it  would 
seem  that  the  same  question  arises.  Does  the  appointee  fill  such  a 
character  as  entitles  him  in  equity  to  have  a  defect  supplied  ?  It 
is  singular,  that  in  the  very  sentence  before  he  pronounced  this 
opinon.  Lord  Hardwicke,  referring  to  The  Duke  of  Marlborough 
V.  Godolphin,  observed,  there  was  no  consideration  of  merit  there 

to  make  the  Court  supi)ly  the  defect :  and  yet  there  the 
[  *99  ]  objects  were  *the  testator's  own  children,  in  whose  favour 

he  had  given  a  power  over  a  large  fund  to  his  wife,  who 
was  not  their  mother.  In  delivering  judgment  in  the  Duke  of 
Marlborough's  case,  he  said.  Lady  Sunderland  had  several  ways 
to  execute  the  power,  by  deed  or  instrument  in  writing,  or  by  a 
proper  will ;  but  he  was  of  opinion,  whichever  way  she  took  to 
make  any  of  the  children  of  the  testator  take  by  virtue  of  it,  it 
must  be  a  complete  act  done  by  her,  and  that  an  imperfect  act  in 
execution  of  this  power  would  not  make  any  part  of  this  money 
vest  in  any  of  the  i)ersons  to  take  under  it ;  for  it  was  admitted 
by  the  counsel  there  was  no  purchaser,  no  greater  merit  in  ono 


RELATION   OP   CHARACTER  TO   DONEE.  89 

than  the  other,  all  being  volunteers,  and  therefore  no  ground  to 
supply  any  defect  in  the  execution  of  the  power.  She  had  chosen 
to  execute  it  by  will,  and  he  was  of  opinion  that  this  act  of  hers 
in  execution  of  her  power  must  be  considered  as  a  will. 

26.  Where  a  man  makes  even  a  voluntary  settlement,  vesting 
the  property  in  a  trustee,  and  ties  himself  down  to  a  specified 
mode  of  revoking  it,  equity  will  not  presume  that  he  intended  to 
revoke  the  settlement  by  the  acceptance  of  a  conveyance  to  him- 
self not  expressing  any  such  intention  ;  and  if  there  is  any  neg- 
lect of  the  solemnities  required,  yet  equity  will  not  supply  the 
want  of  them,  for  the  settlor  is  entitled  to  no  aid  ;  but  if  he  de- 
sire to  regain  the  property,  he  must  pursue  his  power. 

27.  This  was  decided  in  Ellison  v.  Ellison, (w)  where  a  man  in 
efifect  transferred  a  moiety  of  a  leasehold  estate  to  a  trustee,  upon 
trust  for  himself  for  life,  and  afterwards  for  others,  with  a  power 
to  revoke  and  limit  new  trusts  ])y  deed  or  writing  executed  in  the 
presence  of  two  witnesses.  About  a  year  afterwards,  the  trustee, 
{^who  was  the  owner  of  the  other  moiety) ,  in  consideration  of  the 
settlor  having  paid  half  the  expenses  of  the  estate,  assigned  to 
him  a  moiety  of  the  estate  for  his  own  proper  use  for  ever.  The 
deed  was  not  executed  as  required  by  the  power,  and 

did  not  recite  *thc  settlement.  Lord  Eldon  observed,  [  *100  ] 
that  the  settlor  had  said  he  put  that  restraint  upon  his 
own  power,  not  only  that  he  shall  not  have  a  power  of  revocation 
whenever  he  changes  his  intention,  but  that  he  shall  not  execute 
that  power,  nor  be  supposed  to  have  that  change  of  intention,  un- 
less manifested  by  an  instrument  executed  wdth  certain  given 
ceremonies.  His  opinion  was,  that  if  there  was  nothing  more  in 
the  transaction  than  taking  out  of  the  trustee  the  estate  clothed 
with  a  trust  for  others,  and  that  was  done  by  an  instrument  with 
no  witness  or  only  one  witness,  it  was  hardly  possible  to  contend 
that  such  an  instrument  would  be  a  revocation  according  to  the 
intention  of  the  party,  the  evidence  of  whose  intention  is  made 
subject  to  restrictions  that  are  not  complied  with.  He  did  not 
think,  consistently  with  the  intention  expressed  in  the  first  instru- 
ment, and  the  necessity  imposed  upon  himself  of  declaring  a  dif- 
ferent intention  under  certain  restrictions,  that  if  a  different  in- 
tention appeared  clearly  upon  the  face  of  the  instrument^  the  latter 

(m)  6  Ves.  jun.  656. 

8' 


90  SUGDEN   ON   rOWERS. 

\_instni}nent^  u'otihl  have  controlled  the  former.     But  he  did  not 
think  his  acts  did  manifest  a  dilVerent  intention. 

28.  Tiiat  a  defective  execution  cannot  be  aided  in  favour  of 
the  settlor  himself,  was  also  decided  in  Sergison  v.  Scaly. (n) 
There  a  woman  had  power  to  ai)point  4,000/.  by  deed  or  writing, 
signed  in  tlie  presence  of  three  witnesses.  She  by  marriage  arti- 
cles, attested  by  two  witnesses  only,  covenanted  that  her  intended 
husband  should  have  a  certain  interest  in  2,000/.,  part  of  it ;  but 
as  to  the  other  2,000/.,  it  was  covenanted  that  she  should  have 
that  to  her  separate  use.  The  contract  was  deemed  a  valid  exe- 
cution of  the  power  in  equity,  in  favour  of  the  husband.  But  Lord 
Hardwickc  said  as  to  the  remaining  2,000/.  it  fell  under  a  differ- 
ent consideration,  for  it  was  not  a  covenant  for  the  execution  of 
the  power ;  for  in  it  the  husband  was  to  take  nothing,  nor  the 

issue.  She  was  to  have  it  for  her  separate  use  as  be- 
[  *101  ]  fore,  *and  then  it  came  to  the  same  case  if  she  had  exe- 
cuted a  writing  making  this  appointment  and  executing 
this  power  voluntarily,  without  consideration,  before  two  witnesses 
only,  where  the  power  requires  three,  which  is  a  void  execution, 
and  the  Court  never  supplied  these  defects  unless  for  a  valuable 
consideration. 

29.  In  Arundell  v.  Phillpot,(o)  a  woman  made  a  voluntary 
settlement,  with  a  power  to  revoke  upon  the  tender  of  a  guinea, 
and  then  made  another  voluntary  settlement,  and  the  parties 
claiming  under  the  latter  being  upon  a'  first  trial  unable  to  prove 
a  tender,  they  filed  a  bill  to  have  the  defect  supplied.  But  the 
Court  said,  it  might  supply  an  informal  or  defective  revocation, 
but  could  not  make  a  revocation  where  there  was  none  ;  and 
therefore,  the  Court  added,  either  prove  a  tender  of  the  guinea, 
or  that  she  declared  she  intended  to  revoke  the  former  settle- 
ment ;  one  or  other  of  them  shall  be  sufficient,  though  it  hath  not 
all  the  formalities  and  circumstances  mentioned  in  the  power  of 
revocation,  so  it  appears  to  be  a  sober  solid  act,  and  done  animo 
revocandi :  but  that  could  not  be  made  out.  It  was  then  insisted 
that  the  subsequent  deed  should  be  taken  as  a  sufficient  revoca- 
tion, being  of  the  same  land,  and  made  to  different  uses,  but  that 
was  not  allowed. 

{n)  9  Mod.  390;  2  Atk.  414,  -where  it  is  not  accurately  reported. 
(o)  2  Vern.  'J;  Cha.  Ca.  70.  93.  108;  3  Mod.  142. 


OF  BELIEF   FOR   CREDITORS.  91 

30.  In  this  case  the  contest,  it  seems,  was  Ijctwecn  two  volun- 
teers, for  the  settlor  was  dead,  without  issue.  Of  course  no 
defect  could  have  been  supplied  in  her  own  favour,  for  that  would 
have  been  simply  to  give  her  a  different  power  from  the  one 
created.  And  notmthstanding  what  is  reported  to  have  fallen 
from  the  Court,  it  is  clear,  on  the  one  hand,  that  no  declaration  of 
hers  of  her  intention  to  revoke  would  have  enabled  the  Court  to 
supply  a  defect  in  favour  of  a  volunteer,  and  on  the  other,  that 
the  actual  resettlement  of  the  ])roperty  would  have  compelled 
equity  to  supply  the  defect  of  the  tender,  if  the  resettlement  had 
been  upon  persons  entitled  to  the  aid  of  the  Court. 

*31.  We  have  seen  that  this  equity  extends  to  [  ''102  ] 
creditors ;  and  where  a  man,  having  a  general  power  of 
appointment,  duly  executes  it  in  favour  of  a  stranger,  equity  will 
lay  hold  of  the  funds  in  the  hands  of  the  appointee,  for  the  bene- 
fit of  the  creditors  of  the  person  executing  the  power  ;(p)  but 
where  the  power  is  not  executed,  equity  cannot  assist  the  credit- 
ors.(7)  Upon  this  doctrine,  Lord  Erskine,  in  the  case  of  Holmes 
V.  Coghill,  started  an  ingeuious  question,  wliether,  if  tlie  power 
be  informally  executed  in  favour  of  a  stranger,  equity  can  first 
grant  the  relief  at  the  suit  of  the  creditors,  so  as  to  vest  the 
fund  in  the  appointee,  and  then  convert  him  into  a  trustee  of  it 
for  creditors ;  and  he  appeared  to  think  that  this  might  be 
done.(/*)  There  is  no  authority  however,  for  this  circuitous 
relief,  and  it  may  well  be  doul^ted  whether  it  will  ever  be  granted. 
Where  the  fund  is  effectuaJhj  given  to  a  stranger,  equity  con- 
siders him  a  trustee  of  it  for  the  creditors,  and  the  remainder- 
man has  no  ground  of  complaint,  because  the  power  is  legally 
executed.  Where  a  defect  is  supplied  for  the  appointee,  the 
relief  has  at  least  the  merit  of  effectuating  the  intention  of  the 
person  executing  the  power,  although  at  the  expense  of  the  re- 
maindei'-man ;  but  if  this  relief  slujuld  be  afforded  in  favour  of 
creditors,  where  the  fund  is  not  given  to  them,  the  same  hardship 
would  ha  imposed  on  the  remainder-man,  and  at  the  same  time 
the   intention   of  the   donee   of  the   power  would   be  defeated. 

(p)  Vide.  ch.  8,  s.  3. 

(7)  Vide  infra,  sect.  6. 

(r)  Holmes  v.  Coghill,  12  Ves.  jun.  206. 


92  SUGDEN   ON   POWERS. 

Upon  this  head  of  OjuiLy  it  is  clearly  established  that  the  inter- 
ests of  the  remainder-man  shall  only  be  sacriliced  to  the  intention 
of  the  donee  of  the  power  expressed  in  favour  of  a  person  from 
whom  a  valuable  consideration  moved,  or  in  whose  person  a  good 
consideration  existed.  The  iirst  point  to  be  established  is  the 
intention  of  the  person  executing  the  power,  which  in  this  case  is 
not  merely   wautintr,  but  his  intention  expressly  was,  that  his 

creditors  should  not  have  the  liind.  The  common 
[  *103  ]  equity  *in  favour  of  creditors,  where  the  fund  is  given 

to  others,  does  not  arise  until  the  power  is  legally  exe- 
cuted. The  limits  of  the  law  on  this  head  appear  to  be  contained 
in  the  decided  cases. 

32.  Although  the  appointee  may  pnm%  facie  be  entitled  to  the 
aid  of  the  Court,(5)  yet  to  prevail  he  must  have  a  preferable 
equity  to  the  person  against  whom  he  seeks  the  relief.  There- 
fore, where  a  father  agreed  to  settle  an  estate  on  his  wife  and 
children,  but  neglected  to  do  so,  and  afterwards  prevailed  uj)on  his 
eldest  sou,  who  was  ignorant  of  the  agreement,  to  settle  the 
estate  in  a  difterent  way,  whereby  the  father  had  a  power  of 
jointuring,  which  upon  his  second  marriage  he  agreed  to  execute, 
the  agreement  after  his  death  was  agreed  to  be  specifically  exe- 
cuted by  the  son,  who  was  the  remainder-man  under  the  settle- 
ment ;  but  this  decree  was  reversed  in  the  House  of  Lords. (^)(I) 
The  sou  was  seised  of  the  legal  estate,  and  he  had  as  good  an 
equity  to  retain  the  estate  discharged  of  the  jointure,  as  the  wife 
had  to  have  the  defect  supplied. 

33.  So,  although  there  is  a  meritorious  consideration  in  the 
appointee,  yet  if  the  donee  of  the  power,  after  a  defective  exe- 

(s)  Sec  Shadwell's  case,  1  Ves.  281,  cited;  aud  see  Hervcy  v.  Hervcy,  1  Atk.  568. 

(<)  Jevers  v.  Jevers,  Dora.  Proc.  1734. 

(I)  The  principle  in  the  text  is  clear,  and  Jevers  v.  Jevers  is  stated  in  Gro.  and 
Rud.  of  Law  and  Equity,  p.  19,  as  having  been  decided  on  the  ground  of  the  fraud 
in  the  father;  but  from  the  printed  cases  it  appears  that  the  settlement  was  made  in 
consideration  of  the  son  waiving  the  agreement  entered  into  upon  his  mother's  marri- 
age, and  the  bond  for  settling  the  jointure  had  no  reference  whatever  to  the  power, 
upon  which  periiaps  the  case  turned.  However,  the  author  of  the  above  book,  who 
lived  in  the  time  when  the  decision  was  made,  most  likely  knew  the  ground  to  which 
the  decision  was  generally  referred.  The  above  case  is  in  4  Bro.  P.  C.  199,  by 
the  name  of  Ivers  v.  Ivers,  which  ditference  arose  from  the  printed  cases.  In  the 
appellant's  case,  the  cause  is  entitled  Jevers  v.  Jevers;  in  the  respondent's,  Ivers  v. 
Ivers. 


OF    RELIEF    FOR    CREDITORS.  93 

cution  of  it,  legally  execute  it  in  favour  of  a  bona  fide  purchaser 
or  mortgagee  without  notice  the  Court  cannot  interfere  ; 
*for  by  the  last  execution  the  purchaser  obtains  the  [  ''104  ] 
legal  estate  ;  and  as  he  has  equal  equity  with  the  first 
appointee,  he  cannot  be  disturbed.  But  if,  previously  to  his  pay- 
ing his  money,  or  to  the  execution  of  the  power,  he  has  notice, 
either  expressed  or  implied,  of  the  prior  appointment,  equity  will 
compel  him,  on  the  ground  of  fraud,  to  convey  the  estate  to  the 
first  appointee,  so  as  to  make  good  the  defect  in  the  appointment 
to  him.(«/) 

34.  And  even  an  appointee  who  takes  by  force  of  a  valid  exe- 
cution, may  be  relieved  against  in  favour  of  a  person  having  a 
litle  to  relief.  Thus  if  a  power  is  well  executed  by  will,  and 
then  the  donee  agrees  by  act  inter  vivos  for  sufficient  considera- 
tion to  execute  the  power  ;  the  will  is  not  revoked  at  law,  and 
the  devisee,  the  appointee,  will  take  the  estate  under  it,  but  he 
will  be  compelled  to  make  good  the  subsequent  defective  execu- 
tion, (a;)  He  is  a  mere  volunteer,  and  the  subsequent  agreement 
was  in  eipiity  a  revocation  of  the  will. 

35.  But  if  a  limited  power  be  badly  executed,  a  purchaser 
from  the  ajjpointee  cannot  set  it  up.  The  payment  of  a  money 
consideration  cannot  make  a  stranger  become  the  olyect  of  a 
power  created  in  favour  of  children.  He  can  only  claim  under  a 
valid  appointment  executed  in  favour  of  some  or  one  of  the  chil- 
dren. An  appointment  at  first  impcachal)le  as  voluntary  may 
ex  post  facto  he,  turned  into  an  apjjointment  for  a  valua])le  con- 
sideration, but  that  is  where  a  valuable  consideration  was  all  that 
was  wanting  to  have  made  it  good  ah  initio.  As  in  the  case  of 
an  appointment  of  property  over  which  he  has  a  power  unlimited 
as  to  objects,  he  wlio  pays  a  consideration  to  the  voluntary  ap- 
pointee, may  constructively  Ijc  held  to  1)0  in  the  same  situation  as 
if  he  had  in  the  first  instance  paid  it  to  him  Ijy  whom  the  power 
has  been  executed. (//) 

36.  These  observations,  however,  although  they  bear 

'upon  the  general  principle,  api>ly  to  cases  not  of  defcc-  [  *105  ] 
tive  execution,  but  of  executions  which  might  be  dcfeat- 

(h)  As  to  what  amounts  to  notice,  sec  2  Treat.  Purch.£70,  ch.  17. 
(x)  Cotton  V.  Layer,  2  P.  Wins.  623. 
(y)   1  Mer.  Cc!8;  per  Sir  W.  Grant. 


94  SUGDEN   ON    POWERS. 

ed,  or  the  benefit  of  tliem  taken   away,  unless   sustained  by  the 
claimant  lilling  tlie  charaeter  of  a  purchaser. 

37.  AVherc  a  power  is  defectively  executed  for  a  favoured  class, 
it  is  altog-etlier  unimportant  that  persons  elaimint^  under  the  set- 
tlement creating  the  power,  or  persons  claiming  under  them,  arc 
purchasers.  In  nearly  all  the  cases  the  remainder-man  against 
whom  the  defect  is  supplied  is  a  purchaser,  but  he  originally  took 
subject  to  the  power,  and  in  equity  the  defective  execution  is 
treated  as  valid,  and  therefore  the  remainder-man  is  charged  with 
it,  although  a  purchaser.  Where  a  bom  fide  purchaser  for  money 
obtains  the  estate  not  under  an  execution  of -the  power,  but  subject 
to  the  power,  and  estate  created  under  it,  l)ut  l)uys  upon  the  faith 
that  the  power  has  not  been  executed,  a  question  of  some  nicety 
would  arise  if  there  was  a  defective  appointment,  viz.  whetlier  he 
could  be  compelled  to  make  it  good.  Perhaps,  as  he  buys  subject 
to  the  power,  he  would  be  held  liable  to  all  the  consequences.  If 
a  different  rule  were  to  prevail,  a  remainder-man  under  a  settle- 
ment might  easily  defeat  in  many  cases  the  equitable  right  of 
persons  claiming  under  an  execution  of  the  power. 

38.  Lord  Nottingham,  in  Smith  and  Ashton,(c)  made  good  a 
defective  appointment  in  favour  of  younger  children,  against  the 
heir  of  the  settlor,  who  took  under  the  voluntary  settlement  by 
which  the  power  Avas  created,  against  the  wife  of  the  son  and  his 
eldest  son,  who  claimed  as  purchasers  under  him  by  his  marriage 
settlement,  and  thoy  had  no  notice  of  the  defective  appointment. 
No  doubt  this  was  fully  warranted  by  the  rules  of  the  Court.  In 
the  report   in    Cliancery  Cases,  Lord   Nottingham,  it   ai)pcars, 

added, — but  a  purchaser  shall  defend  himself  in  such 
[,*106  ]  case,  but  with  difference  *though  not  executed  iaccording 

to  the  circumstances,  for  if  he  had  notice  he  i)urchased 
at  his  own  peril. 

39.  The  Reporter  queries  if  Lord  Nottingjiam  meant  notice  of 
the  original  conveyance  only,  or  the  ill-executed  estate.  He 
must,  it  should  seem,  have  meant  of  the  original  settlement ;.  for 
if  he  had  notice  of  the  defective  a|)pointraent,  of  course  he  would 
be  bound  by  it ;  and  such  a  case  would  hardly  have  been  stated 
as  an  exception,  where  the  power  was  being  enforced  against  per- 

Iz)  1  Cha,  Ca.  2G3,  264;  Finch,  273;  1  Freem.  108;  3  Cha,  Ca.  GO.  106, 


OP  RELIEF   AGAINST   PURCHASERS.  95 

sons  filling  the  character  of  purchasers,  who  had  notice  of  the 
settlement  creating  the  power,  Imt  had  not  notice  of  the  defective 
execution  of  it. 

40.  But  where  a  man  seised  in  fee  of  larae  estates,  and  with  a 
power  of  appointing  a  jointure  over  estates  of  small  annual  value, 
entered  into  a  bond  to  settle  in  jointure  300/.  per  annum  of  lands 
in  three  counties,  of  that  value,  and  no  particular  lands  named, 
and  afterwards  devised  away  the  fee-simple  lands,  so  that  they 
were  subject  to  the  bond  debt ;  it  was  held,  that  persons  claiming 
under  the  marriage  settlement  of  the  remainder-man  as  purchasers, 
though  with  notice  of  the  power,  were  not  bound  to  give  effect  to 
the  covenant  out  of  the  power.  The  Lord  Chancellor  said,  the 
two  parties  were  equally  purchasers,  and  this  power  [covenant] 
being  a  general  power  [covenant]  to  make  a  jointure,  and  not 
said  of  what  lands  in  particular,  was  not  such  a  lien  upon  the 
lands  as  should  aflect  a  purchaser,  though  the  power  had  been 
afterioards  executed,  mucli  less  where  it  is  not  executed  at  all. 
This  opinion  seems  to  have  rested  upon  the  ground  that  the  cove- 
nant was  general,  and  therefore  not  a  lien  upon  the  lands  in  the 
power,(a)  or,  in  other  words,  not  a  contract  to  execute  the 
power ;  for  upon  the  first  hearing  tlie  L.  C.  was  of  opinion  that 
the  power,  if  defectively  executed,  would  have  been  aided.  There 
is  an  error  in  the  further  statement  of  the  judgment ;  for  if  the 
power  had  been  executed  by  the  tenant  for  life,  even 
after  the  'settlement  by  tlio  remainder-man,  it  would  by  [  *107  ] 
its  own  force  have  bound  all  persons  claiming  under 
him,  without  regard  to  their  character  as  purchasers. (6) 

41.  An  attempt  was  formerly  made  to  confine  tlie  relief  to  per- 
sons claiming  under  settlements  for  valuable  consideration.  In 
Lady  Ilooke  v.  Grove,(c)  a  husband  having  made  a  settlement  of 
estates  of  which  he  was  tenant  in  tail,  pursuant  to  articles,  then 
voluntarily  appoint(^  an  additional  jointure  under  a  newer,  and 
Lord  Ilarcourt,  C,  decreed  it  to  be  paid.     But  the  counsel  for 

(a")  See  accordingly,  Parker  v.  Serjeant,  Finch,  146. 

(h)  Elliot  V.  Ilele,  1  Vern.  406,  (1686) ;  2  Cha.  Ca.  29  (1680)  stood  over  to  amend 
the  bill;  2  Cha.  Ca.  87  (1682),  appears  to  be  an  elaborate  argument  for  the  widow. 
The  great  point  was,  whether  the  fee-simple  lands  were  bound  in  the  hands  of  the 
devisee;  and  the  observations  in  this  report  of  the  case,  as  to  purchasers,  apply  to  the 
fee-simple  estate. 

(c)  6  Vin.  Abr.  293,  pi.  40;  12  Ann. 


1)6  SUGDEN    ON    POWERS. 

the  remaiiulor-man  moved  that  tlie  ])(nver  was  not  well  executed 
at  law,  ami  beiug*  a  volimtaiy  settlement  it  oii<i,'ht  not  to  be  aided 
in  ctjuity.  To  which  the  Lord  Chancellor  said,  he  saw  no  reason 
why  a  defective  execution  of  a  power  for  the  benefit  of  the  wife, 
though  otherwise  provided  for,  should  not  be  aided  in  a  court  of 
equity,  as  well  as  want  of  a  surrender  of  a  copyhold,  in  case  of  a 
de\'isc  to  a  child  who  hatli  another  provision  by  the  will ;  but 
since  it  was  insisted  on  that  there  was  no  precedent  in  this  Court 
of  su]tplying"  a  defective  execution  of  a  i)ower  in  case  of  a  volun- 
tary execution,  he  gave  leave  to  try  the  validity  of  the  execution 
of  the  power  at  common  law,  and  retained  the  bill  until  it  was 
determined  at  law.  This  decree  was  affirmed  in  the  House  of 
Lords,  and  as  tliere  is  no  further  trace  of  the  case,  probably  the 
jointure  was  i)aid  without  further  contest.  Tiie  point  at  all  events 
is  now  a  settled  one.  Lord  Hardwicke  observed,  in  Hervey  v. 
Hervey,  that  if  the  wife  had  claimed  in  that  case,  without  setting 
forth  any  consideration,  but  merely  as  a  voluntary  gift  from  the 
husband,  there  was  no  doubt  but  the  Court  would  have  given  it 

to  her.(c?) 
[  *108  ]       *42.  So    in    Churchman  v.  Harvey,(e)  where    the 

poAver  was  contained  in  a  settlement  for  a  valualjle  con- 
sideration, and  was  executed,  but  defectively,  for  a  wife  after 
marriage.  Lord  Commissioner  Willes  observed,  that  it  was  said 
she  was  a  volunteer,  and  that  the  plaintiffs  having  the  law  on 
their  side,  equity  would  not  interfere ;  but  he  was  of  opinion  she 
was  a  purchaser  under  the  power,  which  was  created  by  a  settle- 
ment made  on  valuable  consideration.  She  was  a  purchaser  of 
the  jointure  by  marriage,  which  of  itself  is  a  valuable  considera- 
tion, so  that  she  was  doubly  a  purchaser  of  her  jointure :  and 
though  it  Avas  made  after  marriage,  yet  it  was  a  very  strong  case  : 
the  power  was  to  jointure  l)efore  or  after  marriage. 

43.  L"p(^n  this  subject  of  equitable  relief  ^  question  has  often 
arisen,  wliether  a  party  be  entitled  to  the  relief  who  is  already 
provided  for ;  but  it  is  well  settled,  that  of  the  quantum  of  provi- 
sion the  parent  or  husband  is  the  best  judge. (/)     It  has,  how- 

(«/)  1  Atk.  504. 

(c)  Anibl.  tjo'j. 

(/)  Kettle  \.  Townsend,  1  Salk.  187;  Andrews  y.  Waller,^  Vin.  Ab.  237,  pi. 
12;  Tudor  v.  Anson,  2  Ves.  582;  Smith  v.  Baker,  1  Atk.  385;  Chapman  v.  Gibson, 
3  Bro.  C.  C.  229;  and  Barnard,  C.  C.  113,  per  Lord  Hardwicke. 


HEIR   UNPROVIDED,  ETC.  97 

ever,  been  long  vexata  qticstio,  whether  a  surrender  can  be  sup- 
plied against  an  heir  totally  wiprovided  for, {g')  In  Chapman  and 
Gibson,  Lord  Alvanley  considered  that  the  heir  could  not  be  re- 
lieved against.  The  principle,  he  said,  must  l)e  this ;  that  the 
testator  being  under  an  obligation  to  do  an  act,  we  will  compel 
the  heir  to  perfect  it ;  but  we  will  not  compel  him  to  fulfil  one 
obligation  at  the  expense  of  another  ;  and  if  the  testator  has 
totally  forgot  to  make  any  provision  for  his  eldest  son,  this  shall 
be  an  answer  to  the  claim  of  the  wife  or  other  children.  In  a 
late  case. (A)  Lord  Rosslyn  considered  it  equally  clear  that  the 
Court  could  not  enter  into  the  question,  whether  the  heir  was  or 
was  not  provided  for  ;  but  it  was  not  necessary  to  de- 
cide the  point.  Lord  Alvanley,  however,  did  not  *sub-  [  *109  ] 
scribe  to  Lord  Rosslyn' s  doctrine,  but  still  retained  his 
opinion  that  an  heir  could  not  be  compelled  to  supply  the  surren- 
der, where  he  could  show  that  the  consequence  would  be  (he  be 
ing  a  son  wholly  unprovided  for)  that  he  would  be  compelled  to 
fulfil  the  intention  of  his  father  in  discharge  of  a  moral  or  natural 
obligation  in  favour  of  a  widow,  or  of  his  brothers  or  sisters, 
when  it  was  manifest  that  he  had  neglected  to  discharge  the  obli- 
gation he  was  under  of  providing  for  him  his  eldest  son.(i)  This 
question,  therefore,  is  still  very  doubtful ;  nor  is  it  easy  to  con- 
jecture Avhich  way  it  will  be  decided.  Those  who  advert  to 
principle  will  prol)ably  agree  with  Lord  Alvanley,  whilst  those 
who  regard  practical  inconvenience  will  coincide  with  Lord  Ross- 
lyn; for  certainly  endless  difficulties  will  be  introduced  if  the 
Court  is  to  inquire  into  the  circumstances  of  the  heir-at-law. 

44.  It  is  clear,  however,  that  this  question  can  never  arise 
where  the  heirs  are  persons  for  whom  the  testator  is  under  no 
natural  or  moral  obligation  to  provide,  as,  where  the  heir  is  a 
nephew,  or  niece, (A;)  or  sister. (Z)  But  if  the  inquiry  is  to  be 
made,  it  should  seem  that  a  grandchild  will  l)e  vathin  the  princi- 

(g)  Kettle  V.  Townsend,  I  Salk.  187;  Hawkins  v.  Leigh,  1  Atk.  387. 

(h)  Hills  V.  Downlon,  5  Vcs.  jun.  557. 

(i)  See  A  pp.  No.  24,  the  observations  of  Lord  Alvanley  On  Hills  and  Down  ton, 
written  witli  his  owa  hand;  see  Fielding  v.  Winwood,  IG  Ves.  jun.  90;  Rodgers  v 
Marshall,  17  Ves.  jun.  294. 

(/i)  Chapman  v.  Gibson,  ubi  sup.     Smith  v.  Baker,  1  Atk.  385. 

(Z)  Fielding  Y.  Winwood,  10  Ves.  jun.  90. 

Vol.  I.  9 


98  SUGDEN  ON  POWERS. 

pie,  althougli  a  surrcndor,  or  a  defect  in  the  execution  of  a  power 
cannot  be  supplied  in  his  favour.  («0  Lord  Rosslyn  has  decided 
that  daughters  are  provided  for  when  married ;  (w)  nor  is  it  neces- 
sary tliat  the  heir  sliould  lie  disinherited,  for  if  he  is  provided  for, 
it  is  immaterial  from  whom  the  provision  moved. (o) 

45.  Important,  howeuer,  as  this  question  is,  and  fre- 
[  'llO  ]  quently  *as  it  will  probably  arise  on  copyholds,  yet  it 
is  a  point  that  can  seldom  occur  in  relation  to  powers. 
For  questions  as  to  aiding  defective  executions  of  jiowers  generally 
arise  upon  particular  powers  in  settlements,  where  the  estate  sub- 
ject to  the  power  is  either  settled  on  the  heirs  of  the  person  cre- 
ating the  power,  or  on  strangers :  if  it  be  settled  on  the  heirs, 
then  they  are  provided  for  under  the  settlement ;  and  if  it  be  set- 
tled on  strangers,  they  cannot  require  a  provision :  so  that  in 
either  case  the  defect  may  be  supplied,  although  it  should  be  deter- 
mined that  the  relief  cannot  be  granted  against  an  heir  totally 
unprovided  for.  Indeed,  in  the  case  of  Carter  v.  Carter,(;))  Sir 
Joseph  Jekyll,  addressing  himself  to  this  point,  said,  that  where  a 
younger  child  comes  into  equity  to  have  the  want  of  sun-ender  of 
copyhold  supplied,  he  must  be  wholly  unprovided  for,  or  have  but 
a  very  slight  provision  ;  though  there  had  been  great  variety  ol' 
opinions  upon  this  point,  and  where  all  the  children  have  been 
well  provided  for,  the  Court  has  supplied  the  want  of  a  surrender 
against  the  heir,  because  the  father  was  the  best  judge  in  what 
manner  to  provide  for  his  children  ;  and  he  believed  Lord  Cowper 
was  the  first  who  refused  it,  because  the  younger  child  was  great- 
ly provided  for,  and  the  heir  had  little  or  nothing  ;  but  he  had 
never  known  this  distinction  made,  or  that  the  Covrt  would  enter 
into  the  consideration  of  it,  where  the  yovnger  child  has  applied 
to  have  a  defective  execution  of  a  poiver  made  good.  It  is  im- 
possible, however,  to  administer  a  different  equity  in  these  cases. 
They  stand  on  precisely  the  same  ground.  We  have  Lord  Alvan- 
ley's  authority  for  this. (9)  The  same  doctrine  was  laid  down 
by  Lord  Chancellor  King,(r)  and  adopted  by  Lord  Camden. (5)  . 

(77))  See  Rodgers  v.  Marshall,  17  Ves.  jun.  294. 
(k)  Hills  V.  Dovrnton,  5  Ves.  jun.  557. 

(0)  Hawkins  v.  Leigh,  1  Atk.  3b7;  Chapman  v.  Gibson,  3  Bro.  C.  C.  229;  Pike 
Y.  White,  ib.  286. 

ip)  Mose.  3G5.  {q)  Chapman  v.  Gibson,  3  Bro.  C.  229 

(»•)  Cotter  Y.  Layer,  2  P.  Wms.  623,  third  point, 
(s)  Godwin  y.  Kilsba,  Ambl.  684. 


WHERE  PARTIES   HAVE   EQUAL  EQUITIES.  99 

46.  In  Hcrvey  v.  Hervey,(^)  a  power  of  jointuring 

was  *badly  executed  in  favour  of  the  wife  before  mar-  [  *111  ] 
riage,  and  several  defective  appointments  were  made  to 
her  during  the  marriage,  and  Lord  Hardwicke  considered  her  as 
a  wife  unprovided  for. 

47.  In  Mac  Adam  v.  Logan, (?/)  a  power  was  given  to  appoint 
a  fund  amongst  such  child  or  children  of  the  marriage  as  the 
donee  should  choose,  and  in  default  of  appointment  the  fund  was 
given  to  all  the  children  equally.  The  power  was  defectively 
executed,  as  the  appointment  was  not  sealed  according  to  the 
power ;  and  Lord  Thurlow,  it  is  said,  seemed  to  think  that  the 
want  of  a  seal  could  not  be  supplied  between  persons  having  equal 
equities,  though  it  might  against  an  heir-at-law  or  remainder- 
man ;  but  being  all  children,  it  was  like  a  naked  power.  The 
case,  however,  was  decided  upon  another  ground  ;  and  it  should 
seem  that  Lord  Thurlow's  opinion  cannot  be  supported,  for  sur- 
renders of  copyholds  and  executions  of  powers  in  this  respect  go 
hand  in  hand  ;  and  it  is  well  established,  that  as  to  copyholds,  the 
same  equity  shall  be  administered  against  a  younger  son  as  against 
an  eldest,  (a:)  Therefore,  if  the  children  are  entitled  in  the  same 
way  as  heirs  in  gavelkind,  the  defect  will  be  supplied  in  favour  of 
any  of  the  children,  in  the  same  manner  as  in  common  cases  it 
would  be  supplied  against  the  heir-at-law.  («/)  So  if  the  case 
before  Lord  Thurlow  had  turned  on  that  point,  the  defect  ought 
to  have  been  supplied  on  precisely  the  same  principle  ;  the  mere 
circumstance  of  all  the  parties  Jjcing  children,  was  not  material, 
for  those  to  whom  the  fmi^  was  not  appointed  were  quoad  this 
relief  remainder-men  ;  and  therefore,  unless  they  were  totally 
unprovided  for,  and  Lord  Alvanleifs  opinion  were  to  prevail, 
they  ought  to  have  been  decreed  to  make  good  the  defect.  Lord 
Chief  Justice  Holt  may  be  thought  to  have  been  of  the 

same   opinion   as   Lord  Thurlow.      In  *Montague  v.  [  *112  ] 
Bath,(jr)  he  put  this  case  :  a  A  man  settles  all  his  es- 

(0  1  Atk.  561. 
(u)  3  Bro.  C.  C.  310. 

(j)  See  2  Vcrn.  615:  and  Drake  v.  Robinson,  1  P.  Wms.  443. 
{y)  Bradley  v.  Bradley,  2  Vern.  163;  Andrews  v.  Waller  6  Vin.  Abr.  p.  237,  pi.  12. 
(2)  3  Cha.  Ca.  55;  and  see  2  Yes.  75;  Edwards  v.  Edwards,  3  Madd.  197;  Jacob. 
335. 


100  SUGDEN   ON* POWERS. 

tatc  upon  his  younger  son  for  life,  with  a  power  to  revoke  :  and 
then,  by  defective  execution,  he  gives  all  the  estate  to  his  eldest 
son  ;  is  this  a  good  revocation  in  equity  ?  iVnd  he  answered,  No  ; 
for  the  one  is  as  nearly  related  to  the  father  as  the  otlier  ;  the 
considerations  are  ecpial ;  the  one  is  as  much  the  son  as  the  other 
and  therefore  there  is  no  great  difference  between  them  ;  and  the 
younger  son,  who  hath  the  estate  by  law  shall  enjoy  it,  though 
afterwards  it  shall  return  back  to  him  that  was  the  eldest.  Now 
as  Holt  put  this  case,  it  embraced  all  the  ancestor's  estate  ;  so 
that  if  the  defect  had  been  supplied,  the  younger  son  would  have 
been  totally  unprovided  for  ;  and  this  must  have  been  the  ground 
of  Holt's  opinion  ;  for  if  his  opinion  were  to  be  adopted  as  a  gen- 
eral rule,  it  is  evident  that  the  Court  would  never  supply  a  sur- 
render against  an  eldest  son,  in  favour  of  younger  children  ;  in- 
deed, the  same  argument  precisely  was  formerly  urged  against 
supplying  a  surrender  to  the  prejudice  of  an  eldest  son  :  it  was 
insisted,  that  he  was  as  nearly  related  as  his  brother,  and  having 
the  law  on  his  side,  equity  ought  not  to  interpose  :(«)  but  this 
doctrine  never  gained  a  footing.  In  a  recent  case,  the  equity  was 
established  in  favour  of  an  eldest  against  younger  children  ;(6) 
and  in  a  later  case  where  the  fund  in  default  of  appointment  was 
given  to  the  children  equally,  but  the  shares  of  the  daughters 
were  to  be  for  their  separate  use,  and  to  go  to  their  children,  a 
defective  execution  of  the  power  equally  but  absolutely  was  aided 
by  the  Court,  (c) 

48.  If  under  an  equitable   settlement,  a  power  of  charging 
money  for  his  own  use  be  given  to  tenant  for  life,  and  he  covenant 

to  discharge  the  estate  from  certain  incumbrances  on  it, 
[  *113  ]  it  seems  that  an  execution  of  the  power  for  *valuable 

considerations,  before  breach  of  the  covenant,  would 
be  enforced  in  equity,  although  it  should  be  afterwards  broken  ; 
as  the  person  lending  the  money  ought  to  have  inquired  whether 
the  covenant  was  performed  ;  and  clearly,  a  person  not  actually 
advancing  money  on  the  faith  of  the  power,  but  obtaining  an  exe- 
cution of  it  after  breach  of  the  covenant,  to  patch  up  a  former 

(a)  Sec  Fothergill  v.  Fothergill,  2  Freem.  257. 
(i)  Tlumc  V.  Rundcll,  G  MaJd.  331. 
(c)  Lucena  v.  Lucena,  5  Beav.  249. 


1 


CONTRACTS  TO  EXE(5l'TE  POWERS  ENFORCED.       101 

security,  will  not  be  entitled  to  the  aid  of  equity  against  the  re- 
mainder-man, ^vho  takes  the  estate  charged  with  the  incumbrances 
of  which  it  ought  to  have  been  cleared.  (</) 

49.  If  a  man  execute  a  power  in  favour  of  a  child,  and  cove- 
nant for  a  good  title,  and  damages  be  recovered  at  law  on  the 
ground  of  the  invalidity  of  the  appointment,  yet  he  may  be 
relieved  in  equity,  on  executing  a  valid  appointment,  (e) 

50.  We  may  here  observe,  that  the  act  for  the  abolition  of 
fines  and  recoveries  has  altogether  excluded  *  the  equitable  juris- 
diction from  supplying  defects  in  the  execution  either  of  the 
powers  of  disposition  given  by  the  act  to  tenants  in  tail  or  of  the 
powers  of  consent  given  by  the  act  to  protectors  of  settlements, 
and  the  supplying,  under  any  circumstances,  of  the  want  of  exe- 
cution of  such  powers  respectively,  and*  in  regard  to  giving  effect 
in  any  other  manner  to  any  act  or  deed  by  a  tenant  in  tail,  or 
protector  of  a  settlement,  which  in  a  court  of  law  would  not  be 
^n  effectual  disposition  or  consent  under  the  act.(/) 

(d)  Bradbury  v.  Hunter,  3  Ves.  jun.  187.  260. 

(e)  Whaley  v.  Morgan,  2  Dru.  &  Wals.  330. 
(/)  3&4  Will.  4,  c.  74,8.47. 


102 


SUGDEN    ON    POWERS. 


[    -114   ] 


•SECTION  II. 


OF   THE     RELIEF    WITH     REFERENCE  TO   THE   INSTRUMENT    EXECUTING 

THE  POWFJJ. 


2.  Agreement  to  create  a  power,  if  for 
con.^iJer!^tion,  defect  iiidcil. 

5.  Defective  execution  aided  if  reduced  to 
writing — covenant,  contract,  will, 
letters. 

-8.  Recital  sufficient. 

7.  Answer  in  Chancery  sufficient. 

■8.  Covenant  in  the  settlement  creating 
the  power  suflBcient. 

9.  Sale  and  payment  sufficient. 

10.  But  there  must  be  a  clear  reference  to 

the  fund. 

11.  Contracts  enforced  as  defective  execu- 

tions. 

13.  Contract  to  exercise  a  power  when  in 

possession,  enforced. 

14.  Coventry  v.  Coventry;  contract  under 

the  power  or  otherwise. 

15.  Deficiency  in  quantity  of  jointure'lands 

made  good. 

16.  Husband  not  entitled  to  wife's  portion 

till  jointure  secured,  as  agreed. 

17.  Parol  contract  not  binding  on  remain- 

der-man. 

18.  Unless  when  in  possession,  he  lie  by 

and  allow  expenditure. 

19.  Parol  lease  from  year   to  year  void 

against  remainder-man. 


20.  Contract,  if  a  breach  of  trust,  relieved 

against. 

21.  To  make  a  lease  not  warranted  by  the 

power  not  enforced. 

22.  Unless  a  performance  pi'o  tanto  would 

be  valid. 

23.  Remainder-man  may  enforce  the  con- 

tract of  tenant  for  life. 

24.  Defective  formal  instruments  aided, 

as 

25.  Will  instead  of  a  deed. 

26.  Three  witnesses  instead  of  two. 

27.  Will  not  under  seal  as  required, 

28.  Now  altered  by  1  Vict.  c.  26. 

29.  Observations  on  the  Act. 

30.  Power  itself  rectified  in  a  settlement. 

31.  No  relief  contrary  to  intention  of  crea- 

tor of  power:  as  deed  instead  of  a 
will. 

32.  Or  where  trustees  sell  the  estate,  and 

the  tenant  for  life  the  timber. 

33.  Or   the   interest   determined   accord- 

ing to  the  power  and   the  appoint- 
ment. 

34.  Relief  where   too  much  included   for 

jointure. 
36.  Or  a  different  interest  created  to  se- 
cure it. 


1.  Having  considered,  for  whom  a  defect  will  be  supplied,  we 
must  now  consider  in  what  cases  it  will  be  made  good  with  refer- 
ence to  the  instrument. 

2.  We  may  premise  that  where  a  power  is  agreed  to  be  created., 

or  is  attempted  to  be  created.,  by  a  defective  instru- 
[  *115  ]  ment,  *the  agreement  will  be  enforced,  or  the  defect 

supplied  if  there  is  a  sufficient  consideration  to  support 
the  agi'ccment  or  defective  instrument ;  but  this  is  without  refer- 
ence to  the  person  in  wliose  favour  the  power  may  have  been  exe- 
cuted.    One  of  the  earliest  instances  of  the  interference  of  the 


DEFECTIVE   EXECUTIC^f   AIDED   IF   IN   WRITING.  103 

Court  was  cited  by  Lord  Nottingham  in  Smith  v.  Ashton  ;(g-) 
it  was  in  Lord  Ellesmere's  time ;  where  a  man  had  made  a  feoff- 
ment to  the  use  of  himself  for  life,  with  power  to  make  leases,  &c. 
and  in  the  deed  there  was  a  covenant  that  if  livery  were  not 
made  he  would  stand  seised  to  the  use  aforesaid  ;  afterwards  he 
makes  leases,  and  dies  without  making  any  livery.  It  was  held 
that  the  leases  should  stand  good  by  virtue  of  the  power  ;  for 
although  the  pmver  could  not  be  executed  and  stand  good  out  of 
those  uses  raised  by  virtue  of  the  covenant  to  stand  seised,  neither 
could  they  be  executed  by  the  feoffment,  no  livery  having  been 
made,  yet  because  it  was  clear  that  such  a  power  was  intended  to 
the  party,  though  there  were  a  defect  in  the  execution  of  the  es- 
tate, this  shall  not  invalidate  the  estates  raised  out  of  the 
power.  (1) 

3.  Upon  this  ground  we  have  seen  that  an  agreement  upon  a 
marriage  to  settle  a  woman's  estate,  so  as  to  give  her  a  power  of 
appointment  over  it  during  the  coverture,  is  treated  in  equity  as 
an  actual  conveyance,  so  as  to  enable  her  to  appoint  and  to  com- 
pel her  heir  to  make  good  the  appointment. (7t) 

4.  We  may  observe  that  where  there  are  several  defective  exe- 
cutions, equity  will  supply  the  defect  in  the  last,  in  order  to 
effectuate  the  intent  of  the  parties,  (t) 

6.  And  it  is  only  necessary  that  the  intention  to  execute  the 
power  sliould  appear  clearly  in  writing  ;  whether  the  donee  of  the 
power  only  covenant  to  execute  it,(  j  )  or  by  his  will 
*desire  the  remainder-man  to  create  the  estate  ;(A:)  or  [  *116  ] 
merely  enter  into  a  contract,  not  under  seal,  to  execute 
his  power  ;(/)  or  l)y  letters  promise  to  grant  an  estate  which  he 

{g)  Prince  v.  Chandler,  1  Freem.  308;  1  Cha.  Ca.  263;  and  the  Countess  of  Ox- 
ford V.  Lady  Bruce,  1  Freem.  808. 

(A)  Vide  supra,  vol.  I,  p.  188. 

(t)  Ilervey  v.  Hervey,  I  Atk.  561;  Barnnrd.  C.  C.  103;  9  Mod.  253. 

{j)  Fothergill  V.  Fothergill,  wii  sup.;  Lady  Beaufoy's  case,  2  Vem.  465,  cited, 
Vlford  V.  Alford,  2  P.  Wms.  230,  cited;  4  Bro.  C.  C.  46G;  Coventry  v.  Coventry, 
Francis's  Max  last  case;  2  P.  Wms  222,  Gilb.  Eq.  Rep.  160;  1  Str.  5%;  9  Mod. 
12;  Sargeson  v.  Sealey,  2  Atk.  412;  and  see  15  Ves.  jun.  173. 

(fc)  Vernon  v.  Vernon,  Ambl.  1. 

(/)  Shannon  v.  Bradstreet,  1  Rep.  temp.  Redesdale,  52;  and  see  Mortlock  v. 
Duller,  10  Ves.  jun.  202;  and  see  Coventry  v.  Coventry,  Max.  Eq.  per  Sir  Joseph 
Jekyll;  Blore  v.  Sutton,  3  Mer.  237. 


(1)1  Story's  Eq.  Jur.  §  177. 


10-4  SUGDEN   ON  POWERS, 

cau  only  do  by  an  exercise  of  his  ])Owcr,(/«)  equity  will  supply 
the  delect. 

G.  So,  if  in  a  marriage  settlement  of  one  of  tlie  objects,  the 
donee  recite  that  the  object  is  entnicd  to  a  i)articular  share  of 
the  fund,  and  she  cannot  take  that  share  unless  there  be  an  ap- 
pointment, that  will  be  held  a  good  appointment  in  equity,  as  it 
.demonstrates  an  intention  to  give  that  share  accordingly. («) 

7.  So  au  answer  to  a  bill  in  Chancery,  which  of  course  is  a 
writing  under  the  hand  of  the  party,  that  is,  signed  by  him,  stating 
that  "he  does  appoint,  and  intends  by  a  writing  in  due  form  to 
appoint,"  the  fund  in  a  particular  manner,  was  held  to  be  binding 
although  the  power  was  required  to  be  executed  by  writing  under 
rhand  and  seal  attested  by  two  witnesses,  (o)  It  was  argued  that 
the  donee  had  appointed  upon  oath  and  on  record.  The  Master 
of  the  Rolls  held  that  it  was  a  defective  execution.  The  answer 
says,  he  does  appoint ;  so  it  is  a  present  appointment ;  and  the 
words,  and  intends,  <fcc.,  do  not  derogate  from  that  actual  ap- 
pointment, or  show  that  he  thought  it  would  not  avail,  but  only 
that  he  would  afterwards  execute  it  in  the  precise  form.  He 
compared  the  case  to  the  admission  by  an  answer  of  a  parol  con- 
tract, for  he  said  lie  could  have  done  nothing  that  would 

[  *117  ]  have  made  his  intention  to  appoint  more  manifest  *than 
this  answer.     It  was  treated  as  a  defective  appoint- 
ment which  equity  would  aid. 

8.  And  where  a  man  made  a  settlement  of  an  estate  to  uses  in 
strict  settlement,  and  reserved  a  power  by  deed  or  will,  executed 
in  the  presence  of  two  witnesses,  to  appoint  any  of  the  lauds  for 
raising  portions  for  his  yomiger  eliildreu,  to  be  paid  as  he  should 
by  such  deed  or  will  appoint,  and  by  the  settlement  covenanted  to 
do  so  accordingly,  this  covenant  was  held  to  be  an  equitable  exe- 
cution of  the  power,  although  he  died  without  doing  any  further 
act.(p)  This  case  evinces  that  the  branch  of  equity  on  which  it 
depended  is  not  confined  within  very  narrow  bounds.  Lord 
Eldon,  in  speaking  of  a  power   of  jointuring,  said,  the  donee 

(m)  See  and  consider  Campbell  v.  Leach,  Ambl.  740;  App.  No.  4.  25. 
(ti)  Wilson  V.  Piggot,  2  Ves.  jua.  351.   See  Poulson  v.  Wellington,  2  P.  Wms.  533 
(o)  Carter  v.  Carter,  Mose.    365;  9  Mod.    256,  cited.    See  For.   271;  and  see 
Fortesque  v.  Gregor,  5  Ves.  jun.  553. 
<p)  Doctor  Sarth  y.  Lady  Blandfrey,  Gilb.  Eq.  Eep.  166,  cited. 


CONTRACTS  ENFORCED  AS  DEFECTIVE  EXECUTIONS.     105 

could  not  get  far  wrong  in  equity,  as,  being  for  meritorious  con- 
sideration, it  would  do  in  equity  in  almost  any  form  in  which  that 
intention  was  clearly  expressed.  ((/) 

9.  i^JOid  whatever  solemnities  are  required  to  the  execution  of 
the  power,  yet  a  sale  of  the  funds,  and  payment  of  the  produce, 
to  the  oljject  of  the  power,  at  the  request  of  the  donee,  is  in 
equity  tantamount  to  a  valid  legal  appointment,  (r) 

10.  But  to  ena1)le  equity  to  relieve,  there  must,  as  in  the  case 
of  a  regular  execution,  (s)  be*  a  sufficient  reference  to  the  fund  to 
show  the  party's  intention  to  execute  the  power,  or  the  party 
must  be  in  possession  of  no  other  fund  upon  which  the  covenant 
can  operate.  (^) 

11.  Contracts  arc  considered  as  defective  executions  [  *118  J 
and,  like  them,  require  a  sufficient  consideration  to  en- 
able the  Court  to  act.  The  same  rules,  therefore,  apply  to  each 
case.  As  against  a  remainder-man  l)oth  arc  equally  binding. 
The  principal  distinctions  between  them  are,  that  a  contract 
to  execute  a  power  might  be  enforced  against  the  donee  of  the 
power  himself(«)  where  a  defective  execution  without  any  con- 
tract, although  capable  of  l)eing  enforced  against  the  remainder- 
.man,  could  not  be  aided  against  the  party  who  made  it. 

12.  In  Coventry  v.  Coventry,  where  the  covenant  upon  marriage 
was  to  make  a  jointure  under  the  power,  or  otherwise,  and  deeds 
were  engrossed  but  not  executed,  the  Court  took  this  distinction, 
that  if  it  had  been  a  mere  voluntary  conveyance,  the  animus 
deliberandi  should  have  continued  until  the  conveyance  was  exe- 
cuted, but  there  being  a  contract  to  settle  in  pursuance  of  that 
power,  wlierc  an  estate  is  afterwards  set  out  it  shall  be  presumed 
to  be  an  execution  of  that  contract,  which  in  conscience  he  was 

(9)  18  Ve9.jun.414,  415.  423. 

(r)  Routlelge  v.  Donil,  2  Ves.  jun.  357. 

(«)  Vide  supra,  ch.  0,  sect.  7. 

(()  Jackfoii  y.  .Jackson,  4  Bro.  C.  C.  462;  Ilele  v.  Hele,  or  Elliot  v.  Helc,  2  Cha. 
Ca.  28,  21).  87;  1  Vern.  406  (I) 

(u)  See  1  Scho.  &  Lcf.  50. 

(I)  In  the  report  of  this  case  in  Vernon,  the  Chancellor  takes  up  the  objection  as 
if  the  power  was  general,  but  this  certainly  could  not  have  been  an  objection.  It 
seems  that  it  was  the  core  in  n<  which  was  general,  and  the  covenantor  had  other 
hands  besides  those  comprised  in  the  power.  Mr.  Powell  has  noticed  this  inaccuracy, 
Pow.  18S-187, 


106  SUGDEN   ON   POWERS. 

obliged  to  perforin,  (a;)  Contracts,  therefore,  to  execute  powers 
are  within  the  general  rule  of  equity,  if  tliere  is  a  suflicient  con- 
sideration ;  as  it  is  a  covenant  for  valuable  consideration  for  a 
thing  to  be  done,  ccjuity  ouglit  to  take  it  as  done ;(?/)  and  though 
in  strictness  the  covenant  or  agreement  is  not  an  execution  of  the 
power,  yet  there  being  a  valuable  consideration,  equity  will  supply 
the  circumstances. (c)  If,  said  Lord  Rcdesdale,  a  person  having 
a  power  executes  an  instrument  for  valuable  consideration,  he  is 
understood  in  equity  to  engage  with  the  person  with  whom  he  is 
dealing  to  make  the  instrument  as  effectual  as  he  has  power  to 
make  it,  and  it  shall  have  that  effect,  so  far  as  the  person  execut- 
ing it  has  power  to  give  it  effect ;  and  where  tlie  nature  of  the 

instrument  is  contrary  to  what  the  power  prescribes, 
[  *119  ]  but  that  it  *demonstrates  an  intent  to  charge,  it  shall 

have  the  operation  of  charging  in  that  form  which  the 
power  allows.  («)  In  another  case  the  same  learned  Judge 
observed  that  contracts  for  valuable  consideration (&)  to  execute 
a  power  to  make  a  charge  of  any  description  under  a  power  are 
binding  on  the  remainder-man.  In  the  case  in  which  he  made 
the  observation,  it  was  attempted  to  call  a  contract  to  execute  a 
power  a  case  of  non-execution,  and  to  draw  a  distinction  unfa- 
vourable to  the  former  between  a  non-execution  and  a  defective 
execution.  In  answer  to  this,  he  observed,  that  the  argument 
was  fomided  upon  a  mistake  of  the  meaning  of  a  non-execution : 
a  power  is  said  to  be  not  executed  where  nothing  is  done  ;  but  a 
defective  execution  is  where  the  power  has  not  been  executed 
according  to  the  terms  of  the  power,  (for  if  it  were  executed 
according  to  the  terms  there  would  bo  nothing  to  be  supplied); 
but  where  it  has  been  intended  to  execute  it,  and  that  intention  is 
sufficiently  declared,  l)ut  the  act  declaring  the  intention  is  not  an 
execution  of  the  power  in  the  form  prescribed,  there  the  defect 
shall  be  supplied  in  equity.  What  stronger  declaration,  he  asked, 
of  an  intent  to  execute  a  power  can  there  be  than  a  contract, 
which  makes  the  party  liable  to  damages  for  not  executing  it, 

(x)  1  Str.  602. 

(2/)  Sergison  v.  Sealey,  0  Mod.  300. 

(tr)  Cotter  and  Layer,  2  P.  Wms.  622. 

(a)  Per  Lord  Redcsdale,  2  Ball  and  Beatty,  44. 

(6)  1  Scho.  &  Lef.  60.  62,  63. 


CONTRACTS  TO  EXECUTE  POWERS  ENFORCED.       107 

which  may  be  enforced  against  him,  and  by  which  he  may  be  com- 
pelled to  execute  the  power  in  his  lifetime  ?  It  struck  him  to  be 
beyond  the  case  of  a  voluntary  charge  for  younger  children,  or 
for  a  wife,  which,  if  [being]  for  meritorious  consideration,  have 
always  been  enforced  against  the  remainder-man. 

This  equity  we  shall  see  extends  to  powers  of  every  description, 
powers  of  leasing  as  well  as  others,  (c) 

13.  Powers  of  jointuring,  to  be  exercised  when  in  possession, 
are  frequently  agreed  to  be  executed  by  remainder-men,  whose 
right  of  possession  has  not  accrued,  and  equity  will  make  good 
the  appointment,  if  the  party  afterwards  ^o  actually 

•come  into  possession. (fZ)  In  such  cases  a  covenant  is  [  *120  ] 
a  sufficient  declaration  of  intent  to  execute,  even  when 
made  before  the  power  arises,  for  if  the  power  is  limited  to  be 
exercised  by  the  tenant  for  life  in  possession,  and  he  covenant 
that  ivJten  he  comes  into  possession  he  will  execute,  that  is  bind- 
ing, (e) 

14.  Li  Coventry  v.  Coventry(/)  where  a  devisee,  with  a  power 
of  jointuring  to  the  extent  of  500/.  a  year,  upon  a  treaty  for  mar- 
riage, by  articles  in  consideration  of  a  marriage  portion,  cove- 
nanted that  he  or  his  heirs  would  after  the  marriage,  according 
to  his  power,  or  othericise,  convey  and  appoint  estates  of  500/. 
per  annum  upon  his  wife  for  her  jointure  ;  and  part  of  the  estate 
was  afterwards  selected,  and  the  appointment  prepared  and 
iugrossed,  but  never  executed  ;  Lord  Chancellor  Macclesfield,  the 
Master  of  the  Rolls,  Baron  Price,  and  Baron  Gilbert,  held  that 
the  articles  operated  as  a  lien  upon  the  estates  selected,  in  the 
hands  of  the  remainder-man,  and  tliat  the  defect  ouglit  to  be  sup- 
plied. They  considered  the  words  "or  otherwise"  as  auxiliary  to 
the  real  lien,  viz.  that  if  his  power  should  happen  to  be  insufficient 
to  settle  500/.  a  year,  that  then  it  should  be  done  by  some  other 
means.  It  was  true  he  had  election  to  raise  the  jointure  out  of 
his  own  assets,  or  out  of  his  power :  but  it  seemed  plain  that  he 

(c)  Infra,  section  3. 

{d)  Jackson  v.  Jackson,  ubi  sup.;  and  see  Alford  v.  Alford,  2  P.  Wms.  230,  where 
Francis  survived  Thomas.  See  4  Bro.  C.  C.  466;  and  see  1  Rep.  t.  Redesdalc,  63, 
infra,  oh.  16. 

(e)  1  Scho.  &  Lef  63. 

(/ )  Coventry  y.  Coventry,  2  P.  Wms.  222,  et  ubi  sup. 


108  SUGDEN   ON    POWERS. 

intended  to  raise  it  out  of  his  power  and  the  deed  prepared  was 
sufficient  to  show  that  intention. 

15.  The  same  relief  is  afforded  in  cases  where  the  power  is 
actually  executed,  but  lands  to  the  value  agreed  to  be  settled  by 
the  articles  are  not  coml)rised  in  the  power.  Tlic  wife  will  be 
relieved  against  the  remainder-man  to  the  extent  of  the  deficien- 
cy,(g')   for   articles  are  executory,  and   there  is  no  diflbrence 

between  articles  unexecuted  in  toto,  or  in  part  only ; 
[  *121  ]   *nor  is  it  material  in  these  cases  that  the  appointee 

has  taken  a  collateral  covenant  from  the  donee  of  the 
power  that  the  lands  are  of  the  stated  value. (A) 

16.  If  the  husband  is  to  become  entitled  to  the  wife's  fortune 
in  consideration  of  the  jointure,  and  the  wife  cannot  obtain  the 
jointure,  she  will  be  entitled  to  retain  her  property  against  her 
hus1>and:(i)  while  the  obligations  of  the  husband  remain  unper- 
formed, neither  he,  nor  any  person  claiming  under  him,  will  be 
permitted  to  receive  any  part  of  the  wife's  fortune  upon  any  other 
condition  than  that  of  making  good  the  settlement.  (A;) 

17.  Where  the  contract  to  execute  the  power  is  merely  by 
parol,  it  seems  that  it  will  not  bind  tlie  remainder-man,  although 
it  is  in  part  performed  by  the  intended  appointee ;  as,  where  a 
lease  is  agreed  to  be  granted  by  parol  under  a  power,  and  the 
lessee  expend  money  in  improvements  during  the  life  of  the  person 
who  agreed  to  grant  the  lease. (Z)  In  Carter  v.  Carter,(y?i)  the 
Master  of  the  Rolls  thought  that  a  parol  appointment  would  not 
be  good  in  equity,  even  before  the  statute  of  frauds.  It  is,  Sir 
W.  Grant  observed,  considered  as  a  fraud  in  a  party  permitting 
an  expenditure  on  the  faith  of  liis  parol  agreement  to  attempt  to 
take  advantage  of  its  not  being  in  writing.  But  of  what  fraud, 
he  asked,  is  a  remainder-man  guilty,  who  has  entered  into  no 

(g-)  Marchioness  of  Blandford  v.  Duchess  of  Marlborough,  2  Atk.  542. 

(h)  Lady  ClifiFord  v.  Earl  of  Burlington,  2  Vern.  379.  This  case  was  not  entirely 
approved  of  by  the  Master  of  the  Rolls  in  Evelyn  v.  Evelyn,  2  P.  Wms.  668,  but  ia 
confirmed  by  Lord  Hardwicke's  opinion  in  the  Marchioness  of  Blandford's  case. 

(i)  Holt  V.  Holt,  2  P.  Wms.  648. 

{k)  Mitfurd  V.  Mitford,  'J  Ves.  jun.  87. 

(/)  Shannon  v.  Brndstreet,  Kep.  t.  Redesdale,  52:  Blore  v.  Sutton,  3  Mer.  237; 
Lowry  v.  Lord  Dufferin,  1  Ir.  Eq.  Rep.  28L 

{m)  Mose.  365. 


CONTRACT   IN   FRAUD   OF   POWER,   VOID.  109 

agreement,  written  or  parol,  and  has  done  no  act  on  the  faith  of 
which  the  other  party  could  have  relied  ? 

18.  But  if   after  the    death  of  a  lessor  under  a   power  the 
remainder-man,  with  full   knowledge   of  the  defect,  lie  by,  and 
suffer  the  lessee  to  improve  the  estate  by  rebuilding  or 
*otherwise,  equity  will,  on  the  ground  of  fraud,  compel  [  *122  ] 
him  to   grant  a  new  lease  to  the  lessee  ;(w)  but  in  such 

a  case  if  the  covenants  and  conditions  are   improper  ones,  the 
Court  will  reform  them. 

19.  In  1781,  Lord  Kenyon  gave  an  opinion,  that  a  lease  by 
parol  from  year  to  year,  by  tenant  for  life  with  a  power,  was^ 
.since  the  case  of  Leach  v.  Campbell,  binding  in  equity  on  the 
remainder-man  ;  and  that  consequently  the  executors  of  the  ten- 
ant for  life,  who  died  in  the  middle  of  a  half-year,  were  not  en- 
titled to  an  apportionment,  but  the  rent  would  go  to  the  remain- 
der-man ;(o)  he  added,  that  he  believed  this  point  had  been  de- 
termined, and  that  some  time  ago  he  concurred  with  Mr.  Dunning 
and  Mr.  Maddocks  in  an  opinion  to  the  effect  of  that  he  had  then 
given.  In  a  late  case  the  very  point  arose,  but  it  was  not  neces- 
sary to  decide  it. (7^)  The  opinion  of  the  Court,  however,  aj> 
peared  to  be,  that  the  remainder-man  was  not  bound  by  the  lease, 
and  therefore  was  not  entitled  to  the  rent.  And  in  a  later  case 
it  was  decided  that  the  lease  is  not  binding  on  the  remainder-man 
smd  therefore  the  rent  is  apportionable.(<7) 

20.  And  where  trustees  with  a  power  of  sale  enter  into  a  con- 
tract for  sale  of  the  estate,  which  would  be  deemed  a  breach  of 
trust,  equity  will  not  only  refuse  to  interfere  in  favour  of  the  pur- 
chaser, but  will,  even  at  the  suit  of  the  cestui  que  trusty  restrain 
the  trustees  from  executing  the  contract,  and  the  purchaser  will 
be  left  to  his  remedy  at  law.(r) 

21.  So  where  a  man,  with  a  power  of  leasing  for  twenty- 
one  years  at   rack-rent,  agreed  to  execute  a  lease   for   twenty- 

(n)  Stiles  v.  Cowper,  3  Atk.  692;  Blore  v.  Sutton,  ubi  sup. ;  vide  infra,  sect.  4. 

(0)  This  opinion  is  now  printed,  1  Swanst.  851.  n. 

(/))  Billing  V.  Earl  of  Macclesfield.  Rolls,  5  Feb.  1807,  MS. 

{q)  Ex-parte  Smyth,  1  Swanst.  337,  S.  C.  MS.;  Clarkson  v.  Lord  Scarborough,  I 
Swanst.  354,  n. ;  Symons  v.  Symons,  G  Madd.  207. 

(»•)  See  Mortlock  v.  Duller,  10  Ves.  jun.  292;  and  see  Stratford  v.  Lord  Aid- 
borough,  1  Ridg.  P.  C.  281 ;  Brian  v.  Acton,  6  Vin.  Abr.  533,  pi.  33. 

Vol.  II.  10 


110  SUGDEN  ON  POWERS. 

[  *12o  ]  one  *3'cai*s,  and  a  further  lease  for  twenty-one  years  at 
any  time  during  his  life,  consequently  to  execute  a 
lease  for  twenty-one  years,  whatever  might  be  the  increased  value 
of  the  property  at  the  time  of  the  lease  granted ;  there  were 
other  points  in  the  cause,  but  Lord  Redesdale  considered  this  to 
be  an  agreement  to  act  in  fraud  of  the  power,  and  held  that  the 
purchaser  was  not  entitled  to  a  specific  performance  even  pro  tanto. 
He  thought  that  courts  of  equity  should  never  enforce  such  con- 
tracts, whether  with  a  view  to  the  party  himself  or  to  the  person 
entitled  in  remainder.  In  the  first  place,  it  is  unconscionable  in 
the  tenant  for  life  to  execute  such  a  lease,  because  it  brings  an 
incumbrance  on  the  estate  of  the  remainder-man,  and  puts  him  to 
litigation *to  get  rid  of  it ;  and  as  to  the  tenant  for  life,  it  is  com- 
pelling him  to  do  what  is  to  be  the  foundation  of  a  future  action  for 
damages  if  he  die  before  the  twenty-one  years.  The  Court  will 
never  do  this,  but  will  leave  the  party  at  once  to  bring  his  action 
for  damages.  And  he  also  conceived  that  this  sort  of  contract, 
obtained  by  a  person  who  knew  at  the  time  the  nature  of  the 
title,  is  unconscionable  in  him,  as  he  makes  himself  a  party  know- 
ingly to  that  which  is  a  fraud  on  the  remainder-man,  and,  under 
such  circumstances,  he  has  no  claim  to  the  assistance  of  a  court 
of  equity,  (s) 

22.  It  seems,  however,  open  to  contend,  that  if  tlic  lessee  is 
willing  to  take  such  a  lease  as  the  party  can  grant  without  risk  to 
himself  or  injury  to  the  remainder-man,  equity  must  specifically 
perform  the  agreement  joro  tanto. (t)  But  where  the  party  cannot 
grant  the  lease  required  so  as  to  bind  the  inheritance,  the  Court 
will  not  decree  a  specific  performance  by  directing  an  invalid 
lease  to  be  executed,  which  might  encumber  and  embarrass  those 

entitled  to  estates  in  remainder.(M) 
[  *124  ]       *23.  xVnd  here  it  must  be  observed,  that  as  a  con- 
tract to  execute  a  power  will  bind  the  remainder-man, 
so  where  it  can  be  executed  in  his  favour,  as  in  the  case  of  an 
agreement  to  gi-ant  a  lease,  or  sell  an  estate,  the  Court  will  com- 

(s)  Harnett  v.  Yielding,  2  Scho.  &  Lcf.  549.  See  Corry  v.  Corry,  1  Wall.  &  Lync. 
278. 

(0  See  Treat.  Turch.  vol.  1,  209.  306. 

(u)  Ellard  v.  Lord  LlandaflF,  1  Ball  &  Beatty,  241 ;  and  see  O'Rourke  v.  Percival, 
2  Ball  &  Beatty,  58,  which  was  treated  as  a  case  of  fraud;  Thomas  t.  Dering,  1  Kee. 
729;  DoweU  V.  Drew,  1  You.  &  CoU.  C.  C.  345. 


CONTRACT   IN   FRAUD   OF  POWER,   VOID.  Ill 

pel  the  execution  of  it  on  his  behalf, (re)  although  this  seems  form- 
erly to  have  been  doubted  ;(?/)  but  where  the  power  is  to  lease  in 
possession,  the  agreement  will  not  be  binding  unless  the  donee  of 
the  power  survive  the  period  when  the  lease  is  to  commence.  In 
some  cases  this  equity'  may  be  very  beneficial  to  the  remainder- 
man. Suppose  a  power  to  make  a  jointure  not  exceeding  1,000/. 
per  annum,  with  a  proviso,  that  if  there  were  no  execution  of  the 
power,  and  if  the  tenant  for  life  should  die  leaving  a  widow,  she 
should  have  500/.  per  annum  ;  and  suppose  a  contract  made  upon 
the  marriage  of  the  tenant  for  life  to  charge  400/.  for  her  under 
the  power,  which  would  be  a  less  provision  than  she 
Vould  have  if  the  power  had  not  been  executed:  [  *125  ] 
Lord  Redesdale,  who  put  this  case,  conceived  that  the 
widow  could  not  say  she  was  not  bound,  (c) 


24.  In  none  of  the  cases  we  have  yet  examined  was  the  power 
attempted  to  be  legally  executed  by  a  formal  instrument,  in  a  man- 
ner required  by  the  power.     The  same  relief,  however,  is  granted, 

(x)  Shannon  v.  Bradstreet,  1  Sch.  &  Lef.  52-,  Lowe  v.  Swift,  2  Ball  &  Beat.  529. 

(J/)  Stamford  v.  Omly,  1  Rep.  t.  Redesdale,  65,  cited;  and  Campbell  v.  Leach, 
Ambl.  740.(1) 

(2)1  Sch.  &  Lef.  G3,  64. 

(I)  In  this  case  Lord  C.  J.  de  Grey,  after  holding  that  the  lessee  might  enforce  the 
contract  against  the  remainder-man,  is  made  to  say,  "  And  I  do  not  know  that  the 
remainder-man  could  on  his  part  enforce  the  contract  of  such  tenant  for  life.  I  had 
at  first  some  doubt  of  this  point,  but  own  mj-self  satisfied  by  what  was  said  in 
answer."  In  a  late  case  Lord  Redesdale  said,  that  he  suspected  these  additional 
words  were  not  uttered  by  the  Lord  Chief  Justice;  Shannon  and  Bradstreet,  ubi  sup. 
It  is  evident,  however,  that  they  were  ;  and  it  seems  clear  that  his  opinion  was  ex- 
actly contrary  to  what  it  is  stated  to  have  been.  It  is  manifest,  from  the  frame 
of  the  sentence,  that  he  said  he  did  not  know  that  the  remiinder-man  could  not 
enforce  the  contract.  This  will  appear  clearly  on  a  perusal  of  the  whole  sentence  in 
the  report.  The  omission  of  the  word  not  was  probably  an  error  of  the  press.  It 
now  appears  from  Mr.  Blunt's  edition,  that  Serjeant's  Hill's  MSS.  agree  with  the  re- 
port, but  from  another  MS.  note  of  the  judgment,  the  sentence  runs  thus;  Whether 
the  remainder-man  could  in  point  of  law,  compel  an  execution  of  the  contract,  is  an- 
other question,  but  if  the  power  was  well  executed  the  relief  would  be  mutual.  AH 
circumstances  are  observed  for  the  remainder-man's  interest,  and  why  should  he 
not  be  bound  by  the  tenant  for  life  ? 


112  SUGDEN   ON   POWERS, 

where  an  attempt  is  made  to  execute  the  jjower,  but  there  is  a 
defect  iu  the  mode  of  execution. (1) 

25.  As  where  the  power  ought  to  be  executed  by  deed,  but  is 
executed  by  will.('0 

20.  Or  the  instrument  is  required  to  be  attested  by  three  wit- 
nesses, whereas  it  is  only  attested  by  two.  (6)  (2) 

27.  Or,  according  to  the  old  law,  the  will  ought  to  be  under 
seal,  but  consists  merely  of  notes  in  writing,  which  arc  found  to 
be  the  will  of  the  party,  (c)  If  a  testamentary  instrmnent  was 
required  by  the  power  to  be  executed  and  attested  in  a  particular 
form,  yet  an  instrument  testamentary  in  execution  of  the  power, 
wanting  wholly  the  forms  of  signature  and  attestation,  would  have 
been  a  good  execution  in  equity  for  a  favored  object : 
[  *12G  J  there  was  no  difference  *in  principle  between  the  defect 
in  form  of  one  witness  or  of  two  witnesses,  or  of  three  wit- 
nesses, or  between  the  defect  in  form  of  the  sealing  or  the  signing. 
If  the  instrument  was  of  the  character  required,  and  there  was  a 
clear  intention  that  it  should  operate  as  an  appointment,  equity 
in  favour  of  certain  objects  supplied  all  defects  in  the  form  of  the 
instrument. (c?)     So  although  the  subject  of  the  power  was  real 

(a)  Toilet  V.  Toilet,  2  P.  Wms.  480;  Mose,  46,  S.  C;  Sneed  v.  Sneed,  Ambl.  64; 
Cowp.  2i;4,  2G5,  cited. (I) 

(6)  Parker  v.  Parker,  Gilb.  Eq.  Rep.  168;  Cotter  v.  Layer,  2  P.  Wms.  623;  Mose. 
227;  Sargesou  v.  Sealey,  2  Atk.  412;  Godwin  v.  Fisher,  1  Bro.  C.  C.  367,  cited,  must 
be  the  same  case  as  Godwin  v.  Kilsha,  Ambl.  681;  Reg.  Lib.  A.  1768,  fol.  495;  Wade 
V.  Paget,  1  Bro.  C.  C.  S63. 

(c)  Smith  v.  Ashton,  Fincb.  273;  3  Keb.  551;  1  Cha.  Ca.  263.  264;  1  Freem.  308. 
See  3  Cha.  Ca.  69.  106. 

(d)  Hume  v.  Rundell,  6  Madd.  837,  338,  per  Sir  John  Leach. 

(I)  This  case  stands  thus  in  the  Register's  book:  Power  to  husband  and  wife,  or 
the  survivor,  by  any  deed  or  deeds  duly  executed  to  charge  upon  the  lands  any  sums 
not  exceeding  3,000/.  The  husband  who  survived,  by  his  will  declared  that  the 
3,000/.  charged  upon  the  estate  should  be  disposed  of  for  his  younger  children's  for- 
tunes. They  had  portions  out  of  other  estates.  The  Lord  Chancellor  declared  that 
the  power  was  defectively  executed  by  the  testator's  will,  but  that  such  defect  ought 
to  be  made  good  in  a  Court  of  Equity;  and  that  the  said  3,000/.  was  well  charged  by 
the  testator's  will  for  the  benefit  of  the  said  younger  children.  Reg.  Lib.  1747,  fol. 
441,  Sneyd  v.  Trevor. 

(1)  1  Story's  Eq.  Jur.  §  173. 

(2)  Where  a  power  of  appointment,  which  was  to  be  executed  in  the  presence  of 
two  witnesses,  by  the  terms  of  the  power,  was  executed  in  presence  of  the  one  only, 
it  was  held,  that  equity  should  supply  the  defect  in  favor  of  a  bona  fide  purchaser. 
Schenk  v.  EUingwood,  3  Edw.  Ch,  175, 


I 
1 


WANT   OF   WITNESSES,   SEAL,   ETC.  113 

estate,  yet  this  relief  was  afforded  as  well  where  the  defective  in- 
strument was  a  will,  as  where  it  was  an  act  inter  vivos. (e')  This 
was  doubted, (/)  but  the  point  was  determined  in  the  year  1752 
by  Lord  Hardwicke,  in  the  case  of  Wilkes  and  Holmes,(j')  where 
the  power  rode  over  real  estate,  and  was  expressly  required  to  be 
executed  by  will  duly  executed. 

28.  The  ground  of  the  decisions  was  that  as  to  both  real  and 
personal  estate,  there  was  merely  the  will  of  the  donor,  which,  in 
the  favoured  cases,  equity  did  not  deem  matter  of  substance  ;  for 
even  as  to  real  estate  the  appointment  under  a  power  took  no 
effect  under  the  statute  of  frauds,  although  the  rules  prescribed 
by  the  statute  might  be  arbitrarily  inserted  by  the  party.  But 
now  all  wills  are  subjected  to  the  same  ceremonies,  whether  undt3r 
powers  or  not,  and  the  form  of  execution  or  solemnity  required 
by  the  donor  is  no  longer  binding. (A)  The  validity  of  an  appoint- 
ment by  will,  as  far  as  regards  execution  and  attestation,  now 
wholly  depends  upon  tjie  statute  law.  Now  equity  cannot  set 
aside  or  relieve  against  the  ceremonies  required  by  an  act  of  par- 
liament. The  power,  therefore,  to  assist  defective  executions  of 
appointments  within  the  statute  has  ceased  as  to  wills  made  on 
or  after  the  1st  of  January,  1838.     Even  where  the 

*power  requires,  as  many  powers  do,  the  precise  for-  [  *127  ] 
malities  imposed  by  the  statute,  yet  a  defective  execu- 
tion cannot  be  supplied,  for  the  act  nullifies  every  appointment 
made  l)y  will  in  exercise  of  anij  power,  unless  the  same  be  exe- 
cuted in  manner  required  by  the  statute  itself,  (e) 

29.  It  has  been  observed  that  the  power  of  equity  to  aid  defec- 
tive executions  of  powers  will  no  doubt  lead  to  questions  of  great 
difficulty  under  the  act,  for  which  it  was  to  be  regretted  that  no 
provision  was  made.  It  will  be  difi&cult  to  extend  the  provisions 
of  the  act,  in  this  respect,  to  any  other  will  than  one  regularly 
made  in  exercise  of  a  power, (A;)  that  is  under  a  power  which 

(c)  Wilkes  V.  Holmes,  9  Mod.  485;  1  Rep.  temp.  ReJesdale,  60,  n.;  1  Dick.  165; 
and  see  2  P.  Wms.  228,  arguendo. 

if)  Rob.  ou  Stat,  of  Frauds,  330;  and  see  Fra.  Max.  p.  5;  Gilb.  Lex.  Praetor.  301. 

{g)  Wilkes  V.  Holmes,  9  Mod.  485;  1  Dick.  165;  and  see  Parker  v.  Parker,  Gilb. 
Rep.  168;  10  Mod.  467;  see  1  Scho.  &  Lef.  60. 

(A)  1  Vict.  c.  26,  8.  10. 

(0  II.  Sugd.  Wills,  38. 

(fc)  Sect.  1. 

10' 


114  SUGDEN  ON  PO^VERS. 

uutliorizcs  a  will.  Now  tliis  anomaly  may  arise  under  the  act : 
If  a  man  have  a  power  to  appoint  l)y  will,  and  do  not  strictly  fol- 
low tlic  form  prescribed  by  the  statute,  the  act  will  avoid  the  will, 
although  in  favour  of  his  children  ;  but  if  he  have  a  power  to  ap- 
point by  deed,  and  ))y  a  will  without  even  a  witness  appoint  to  his 
children,  equity  will  aid  the  defect  and  make  good  the  appoint- 
ment. If  ever  the  act  should  be  held  to  extend  to  this  case — 
whieli  would  be  a  great  stretch — yet  an  appointment  by  a  mere 
writing,  not  being  testamentary,  without  any  witness  and  without 
any  legal  form,  would  be  supported  in  equity  if  in  favour  of  a 
wife  or  child  :  whereas  if  the  writing  purport  to  be  testamentary, 
the  defect,  however  slight  and  informal,  could  not  be  aided  if  a 
testamentary  disposition  should  in  such  a  case  be  held  to  be 
within  the  provisions  of  the  act.(/) 

30.  Equity  will  not  only  relieve  against  a  defective  execution 
•of  a  power,  but  will,  on  the  general  rule,  rectify  a  settlement  itself 
where  a  mistake  has  been  made  in  it,  so  as  to  render  a  power  in- 
operative, or  partly  to  defeat  the  intent  of  it,  and  parol  evidence 

will  be  admitted  to  prove  how  the  mistake  arose. (w) 
[  *128  ]  *31.  The  student  will  not  fail  to  have  observed,  that 
in  none  of  the  cases  stated  was  the  intention  of  the  per- 
son creating  the  power  defeated.  If  the  power  be  given  to  be 
executed  by  deed,  to  him  it  is  immaterial  whether  it  be  executed 
by  deed  or  will ;  if  three  witnesses  be  required,  to  him  it  is  unim- 
portant whether  it  be  executed  in  the  presence  of  three  or  two,  so 
■that  the  interest  created  is  authorized  by  the  potver,  for  equity 
will  not  relieve  against  the  defect  if  the  donee  has  been  surprised 
into  the  act.  But  equity  cannot  uphold  an  act  which  would  de- 
feat the  intention  of  the  person  creating  the  power.  Thus  in 
Reid  V.  Shergold,(l)  a  devisee  having  a  life  estate  in  a  co})yhold, 

(I  )  II.  Su.  Wills,  25. 

(m)  Rogers  v.  Earl,  1  Treat.  Purch.  164,  stated  from  Reg.  Lib.;  and  see  Prince 
and  Green,  3  Cha.  Ca.  1,  cited;  Countess  of  Oxford  v.  Lady  IJruce,  1  Frem.  308, 
cited;  Scambler's  case,  Toth.  166;  and  see  Wilmer  v.  Kendrick,  1  Cha.  Ca.  159. 

(1)  By  a  written  instrument  under  hand  and  seal  attested  by  three  or  more  wit- 
nesses, in  the  nature  of  an  appointment  of  a  will  and  testament  to  dispose  of  when- 
ever she  may  please ;  this  is  a  power  which  can  only  be  exercised  hy  will.  William- 
son V.  Beckman,  8  Leigh  R.  20.  See  also  Knight  v.  Yarboro,  Gilmer  (Va.)  Gas.  32. 
Morrij  v.  Owen,  2  Call,  R.  520.     Bentham  v.  Smith,  Cheves's  Eq.  Rep.  33. 

A  general  power  of  disposition  does  not  give  an  absolute  ownership,  if  in  default  of 


EXTENT   OF   EQUITABLE   RELIEF.  115 

with  a  power  of  appointment  by  will,  sold  and  surrendered  the 
estate  to  a  purchaser,  and  after  her  death  the  question  was,  whe- 
ther the  purchaser  could  be  relieved  against  the  defect.  Lord 
Eldon  determined  that  he  could  not.  He  said,  "  that  the  testator 
did  not  mean  that  she  should  so  execute  her  power  :"  he  intended 
that  she  should  give  by  will,  or  not  at  all ;  and  it  was  impossible 
to  hold  that  the  execution  of  an  instrument  or  deed,  which,  if  it 
availed  to  any  purpose,  must  avail  to  the  destruction  of  that 
power  the  testator  meant  to  remain  capable  of  execution  to  the 
moment  of  her  death,  could  be  considered  in  equity  an  attempt  in 
or  towards  the  execution  of  the  power."(w)  The  distinction  be- 
tween this  case  and  the  case  of  a  power  executed  by  will,  though 
required  to  be  executed  by  deed,  is  marked  and  obvious. 

32.  So  in  Cockerell  v.  Cholmeley,  where  the  tenant  for  life 
sold  the  timber,  and  the  trustees  the  estate,  under  a  power  of 
sale,  Avhich  at  law  was  held  bad  ;  upn  a  bill  filed  for  equitable 
relief,  the  Master  of  the  Rolls  said  :(o)  "  The  plaintiffs 
call  upon  this  Court  to  supply  the  defect  in  the  execu-  [  *129  ] 
,  tion  of  the  power,  or  to  reform  and  amend  the  deed  of 
the  12th  of  May  1783.  A  court  of  equity  will,  in  favour  of  per- 
sons standing  in  the  situation  of  the  plaintiffs,  supply  a  defect  in 
the  execution  of  a  power,  which  consists  in  the  want  of  some  cir- 
cumstance required  in  the  manner  of  execution,  as  the  want  of  a 
seal,  or  of  a  sufficient  number  of  witnesses,  or  where  it  has  been 
exercised  by  a  deed  instead  of  a  will.  But  here  it  is  at  law  de- 
cided that  there  was  no  power  in  the  trustees  to  sell  the  land 
without  the  growing  timber,  ^aud  there  is  no  execution  by  the 

(m)  ReiJ  V,  Sbergold,  10  Ves.  jun.   370.     See  Stratford  v.  Lord  Aldborough,  1 
Ridg.  P.  C.  281 ;  Aduey  v.  Field,  Ambl.  G54;  Scott  v.  Davis,  4  Myl.  &  Cra.  87. 
(o)  1  Russ.  &  Myl.  424.     See  12  Sim.  112. 

the  exercise  of  the  power  there  be  a  limitation  over.  Boyce  v.  Walter,  0  Dana's  (Ky.) 
R.  482.  Where  A.  was  trustee  to  convey  to  such  persons  as  B.  should  nominate,  an 
appointment  by  B.  to  such  person  as  A.  should  in  his  discretion  choose,  gives  no  bene- 
ficial estate  in  A.  until  the  execution  of  a  conveyance.  Haslin  v.  Keen,  2  Tayl.  R.  279. 
Flintham's  Appeal.  11  S.  &  R.  IG.  Morris  v.  Phaler,  1  Watts,  389.  Hess  y.  Hess, 
5  Id.  191.  Burwell  v.  Anderson,  3  Leigh  R.  349."  Frouty  v.  Frouty,  Bailey's  Eq. 
R.  530.  Leibcls  v.Whately,  2  Hill's  S.  C.  Rep.  605.  Austin  v.  Thomas,  14  Mass. 
R.  333.  McWhorten  v.  Agncw,  6  Paige's  R.  111.  Cameron  v.  Irvine,  5  Hill's  R. 
276. 


116  8UGDEN   ON   POWERS. 

trustees  of  the  power  to  sell  the  land  with  the  growing  timber  ; 
and  I  find  no  authority  which  applies  to  this  case."  And  this  was 
aflirmcd*in  the  House  of  Lords. 

33.  Again,,  where  a  lease  by  the  terms  of  tlie  power  is  made  to 
determine  upon  non-payment  of  rent,  and  in  consequence  of  non- 
payment it  ceases  at  law,  equity  cannot  set  it  up  again. (p) 

34.  In  Hervey  v.  Hervey(«7)  the  power  was  to  make  a  jointure 
of  such  of  the  lands  as  the  donee  thouglit  proper,  not  exceeding 
600/.  per  annum.  He  appointed  the  whole  estate  as  a  security 
for  300/.  per  annum.  He  then  appointed  another  300/.  per 
annum  clear,  as  a  further  provision  ;  and  lastly,  he  appointed  all 
the  estates  to  raise  600/.  per  annum  net,  and  declared  that  all  the 
deeds  were  to  secure  that  provision.  Lord  Hardwicke  was  of 
opinion,  that  the  execution  of  the  power  was  absolutely  void  at 
law  and  equity,  for  he  had  settled  the  whole  estate,  amounting  to 
900/.  per  annum,  and  not  merely  600/.  per  annum,  and  he  had 
made  the  jointure  a  clear  one,  contrary  to  the  power.  But  he 
supplied  the  defect  in  equity,  by  securing  to  the  wife  a  portion  of 
the  estate  sufficient  to  answer  a  jointure  of  600/.  per  annum,  but 
to  be  made  liable  to  taxes  and  repairs. 

35.  In  this  way  the  intention  of  the  creator  of  the  power  was 

not  contravened,  and  the  intent  of  the  donee  of  the 
[  *130  ]  *power  was  executed  as  far  as  the  power  would  admit. 

"We  cannot  fail  to  distinguish  this  case  from  those  upon 
leases,  where,  contrary  to  the  power,  a  different  interest  is 
created  from  what  the  power  warrants.  There  are  difficulties 
in  the  way  of  remodelling  such  a  (jontract  which  do  not  present 
themselves  in  the  case  of  a  jointure,  where  the  wife  is  to  make  no 
render  as  a  tenant,  but  is  simply  to  enjoy  the  provision  author- 
ized to  be  granted  to  her  and  the  grant  of  which  proves  defec- 
tive. 

36.  Lord  Nottingham,  in  discussing  the  question  of  defective 
executions  of  powers,  observed,  that  where  it  doth  appear  that  it 
was  intended  a  person  should  have  a  power,  and  that  estates  are 
made  by  him  in  pursuance  of  that  power,  the  Court  of  Chancery 
will  not  he  strict  in  all  the  circumstances  of  executing  it ;  and 
he  said  the  resolution  in  Whitlock's  case,  8  Co.,  might  be  laughed 

0?)  Temple  t.  Lady  Baltinglass,  Finch,  275. 

(5)  1  Atk.  561.  , 


EXTENT  OP  EQUITABLE  RELIEF.  117 

at,  and  therefore,  although  equitas  sequitur  legem,  generally,  yet 
sometimes  lex  sequitur  equitatem,  and  the  Judges  of  late  had 
made  larger  constructions  of  powers. 

37.  This  observation  upon  Whitlock's  case  was  probably 
coupled  with  that  which  followed,  and  not  with  what  preceded 
the  observation.  But  Whitlock's  case  is  still  lav) ;  and  although 
equity,  where  there  is  sufficient  consideration,  may  correct  the 
limitation  where  it  is  intended  only  as  a  security,  e.  g.  for  portions 
or  a  jointure,  or  even  where  it  is  for  enjoyment  wholly,  as  in  the 
case  of  a  jointure,  yet  there  is  no  authority  that  equity  can 
correct  a  lease  granted  for  lives  under  a  power,  where  it  ought 
to  have  been  for  years  depending  upon  lives. 

38.  There  are  cases,  such  as  Long  v.  Long,(;-)  where  equity 
considers  the  act  done  as  only  equivalent  to  what  the  power 
strictly  authorizes.  Therefore,  ttndcr  a  power  to  appoint  the  es- 
tate amongst  children,  the  donee  may  direct  it  to  be  sold,  and  the 
produce  paid  amongst  them ;  for  he  might  charge   it 

in  their  favour  to  its  value,  and  then  it  *would  have  [  *131  ] 
to  be  sold  to  pay  oif  the  charges.     But  we  have  al- 
ready considered  what  estates  or  interests  may  be  raised  under 
powers  which  equity  will  support,  although  void  at  law. 


SECTION  III. 

OP   RELIEF   WITH   REFERENCE   TO   THE   NATURE   OF   THE   POWER. 

L  Powers  to  jointure,  portion,  sell,  revoke  I  5.  Not  if  improper  covenant  introduced. 

or  appoint,  aided.  G.    >  Whether  mere  lessee  at  rack-rent  can 

2.  Leases  by  tenant  in  tail,  and  the  like,    7.    ^      be  relieved. 

cannot  be  aided.  ,  8.  Lease  under  a  general  power,  defect 


Leases  of  every  species  of  property 
over  which  equity  has  control 
aided. 

So  under  the  common  power  in  settle- 
ments. 


aided. 
0.  Campbell  v.  Leach, — 

10.  Establishes  right  in  a  lessee,  who  is  in 

the  nature  of  a  purchaser,  to  relief. 

11.  Shannon  v.  Bradstreet. 


1.  Here  we  must  stop  to  inquire  whether  equity  will  in  every 
case  where  there  is  a  meritorious  consideration,  supply  the  defect 


(r)  5  Ves.  jun.  445,  supra. 


118  SUGDEN   ON  POWERS. 

whatever  be  tlie  nature  of  the  power.  It  is  well  settled,  that 
defects  are  to  be  su})])lied  where  the  power  is  to  jointure,  to  raise 
portions,  to  sell  an  estate,  to  revoke  uses,  or  to  appoint  the  estate 
itself  generally  ;  and  indeed  the  only  doubt  is,  how  far  a  de- 
fective execution  of  a  power  of  leasing  can  be  aid6d. 

2.  Thus  far  is  clear,  that  in  the  construction  of  powers  originally 
in  their  nature  legal,  courts  of  equity  must  follow  the  law,  be  the 
consideration  ever  so  meritorious  ;  for  instance,  powers  to  a  tenant 

in  tail  to  make  leases  under  the  statute,  if  not  executed 
[  *132  ]  in  the  requisite  form,  no  *consideration  ever  so  merit- 
orious will  avail.  '  So  with  respect  to  powers  under  the 
civil  list  act,  powers  under  particular  family  entails,  as  the  case 
of  the  Duke  of  Bolton,  <tc.  equity  can  no  more  relieve  from  de- 
fects in  them  than  it  can  from  defects  in  a  common  recovery. (5) 
And  accordingly,  in  an  early  crfse  it  is  laid  down,  that  if  tenant 
in  tail  make  a  lease  for  years  not  warranted  by  the  statute  of  32 
Hen.  8,  that  shall  not  be  made  good  in  Chancery  upon  a  good 
matter  of  equity  ;(^)  nor  indeed  has  any  such  equity  ever  been 
administered. 

3.  "Where  the  power  is  a  common  modilication  of  property 
either  under  the  statute  of  uses,  which  adopted  the  equitable  rule 
and  gave  legal  consistency  to  it,  or  still  rests  upon  equitable  aid 
only,  as  in  the  cases  of  contracts,  or  conveyances  or  limitations  of 
the  equital)le  estate,  or  operates  upon  property  not  within  the 
scope  of  the  statute  of  uses,  as  copyholds,  or  being  within  it,  the 
aid  of  the  statute  is  not  sought  in  the  particular  disposftion,  as  in 
the  case  of  a  devise  directly  to  the  objects  with  powers,  which 
operate  as  common-law  authorities,  but  over  the  dispositions  of 
wiiich  property  equity  always  exercised  its  jui-isdiction,  and  which 
remains  untouched  by  the  statute, — equity  still  aids  a  defective 
execution :  but  Avhere  an  enabling  or  restraining  statute  creates 
or  puts  a  limit  upon  a  power,  or  with  a  view  to  perpetuate  an 
estate  in  a  particular  descent,  from  public  policy  relaxes  the  law 
of  perpetuity,  and  gives  powers  to  persons  for  ever  in  succes- 
sion,— such  cases  do  not  fall  within  the  jurisdiction  of  the  Court, 
but  wholly  depend  upon  tlie  law  that  created  them. 

(s)  Per  Lord  Mansfield,  Cowp.  2G7 ;  and  see  2  Burr.  1146,  and  Anon.  2  Freem.  224. 
.(/)  Eoswell'a  case,  per  Hutton,  1  Ro.  Abr.  37'.),  pi.  6. 


RELIEF   WITH   REFERENCE   TO   NATURE    OF  PO\VER.  119 

4.  The  material  question,  however,  to  be  considered,  is,  whether 
equity  can  relieve  against  a  defective  execution  of  the  usual  power 
of  leasing  in  settlements.  An  opinion  at  one  time  very  generally 
prevailed  in  the  Profession^  that,  as  Mr.  Powell  ex- 
presses *it,(w)  "  the  lessee  under  the  power  must  stand  [  *133  ] 
or  fall  by  that  title  oiibj,  and  if  that  will  not  beaf  him 
through,  as  effectually  made  under  a  complete  and  perfect  execu- 
tion of  the  power,  the  right  of  the  remainder-man  to  possess  the 
estate  free  from  the  lease  will  take  place  of  the  right  of  the  lessee, 
as  superior  to  it.  For  in  this  case  the  lessee  has  no  claim  to  any 
equitable  interposition  in  his  favour,  but  must  rest  his  title  on  the 
legal  execution  of  the  power."  And  this  opinion  seems,  at  first 
view,  to  derive  some  support  from  the  case  of  Temple  v.  Baltin- 
glass,(a;)  where  a  bill  filed  to  supply  a  defective  execution  of  a 
power  to  make  leases  which  had  been  held  void  at  law,  was  dis- 
missed with  costs  :  but  there  appears  to  have  been  great  laches 
on  the  part  of  the  tenant,  and  some  of  the  estates  leased  ivere  not 
authorized  to  be  leased  by  the  poiver. 

5.  So  in  Doe  v.  Sandham,(7/)  a  lease  under  a  power  was  set 
aside  at  law,  because  the  power  required  the  leases  to  contain 
usual  and  reasonable  covenants,  and  a  covenant  was  contained  in 
the  lease  which  the  jury  found  to  1)C  an  unusual  and  unheard-of 
covenant  on  the  part  of  the  lessor.  The  lessee  filed  his  bill  in 
the  Court  of  Exchequer  against  the  remainder-man,  who  had 
recovered  at  law,  to  have  the  unusual  covenant  struck  out  of  the 
lease.  Btit  the  bill  was  dismissed,  (c)  It  is  now  reported, (a) 
and  the  following  judgment  was  given  by  the  Lord  Chief  Baron, 
which  is  not  a  satisfactory  one.  "  This  is  a  bill  to  reform  a  lease 
and  Ijring  it  within  the  power,  the  lessor  being  no  longer  alive, 
nor  any  person  capable  of  exercising  tlie  power,  and  the  relief  is 
asked  against  the  reversioner.  Tlic  power  is  to  lease  for  not 
more  than  twenty-one  years,  inserting  usual  covenants  ;  the  lease 
is   made   with  a   covenant,   '  that  in  case  of  fire  the 

'lessor  shall  rebuild,  or  the  lessee  may  quit.'     The  [  *134  ] 

(u)   Pow.  Powers,  p.  389. 

(x)  Finch.  275;  and  see  Pigot's  case,  Cary,  p.  29. 
(y)  Doe  V.  Sandham,  1  Terra  Rep.  705. 

(i)  Sandham  v.  Med  win,  Exchcq.  2  March  1789,  MS.;  in  the  Register's  Calendar 
't  stands,  Hilary  Term,  1789-90, 
'       (a)  3  Swonst.  686. 


120  SUGDEN   ON   POWERS. 

question  is,  whether  this  is  a  usual  and  reasonable  covenant  ? 
An  ejectment  has  been  brought,  and  the  lessee  is  evicted  on 
the  ground  that  this  is  a  covenant  not  usual  and  reasonable. (6) 
Were  the  question  ojien,  it  might  be  said,  that  if  reasonable, 
though  not  usual,  yet  equity  will  support  such  a  covenant ;  but  we 
have  no  such  *iurisdiction,  the  question  being  precluded  by  the 
judgment  at  law  ;  and  there  is  no  equity  to  interpose  against  the 
reversioner.  One  case  has  been  decided,  viz.  Campbell  v. 
Leach, (c)  where  the  term  was  mistaken  and  made  longer  than  the 
power.  I  submit  to  the  authority,  but  I  cannot  extend  the  prin- 
ciple of  the  case,  not  agreeing  to  it  or  miderstanding  it ;  though 
if  the  princij)le  was  clear,  the  consequences  should  certainly  be 
pursued ;  and  I  understand  the  propriety  of  equitable  relief  in 
case  of  wives,  children  and  creditors,  in  many  instances.  But 
this  is  not  such  a  case  ;  this  is  the  case  of  a  purchaser  with  notice 
of  the  power  under  which  the  lease  was  granted  against  another 
purchaser,  viz.  the  reversioner  ;  this  is  not  like  a  case  of  forfeit- 
ure. If  we  are  to  interpose  to  expunge  the  objectionable  cove- 
nant (being  in  truth  a  part  of  the  very  contract  originally  made), 
there  is  no  instance  to  be  put  in  which  we  ought  not  to  reform 
the  wrong  execution  of  a'  power.  Perhaps  there  may  be  a  right 
to  compel  a  grantor  to  amend  his  own  act,  but  not  to  prevent  a 
reversioner  from  taking  advantage  of  his  legal  title.  Pcrryn,  B. 
said  Campbell  v.  Leach  was  to  relieve  lessees  who  had  laid  out 
great  sums  on  the  demised  mines,  and  the  Court  there  proceeded 
on  prior  authorities." 

6.  On  the  other  hand,  in  a  case  in  1698,  the  Master  of  the 
Rolls  took  this  distinction,  that  where  a  lease  is  made  purely 
voluntary,  and  no  provision  for  a  child,  there,  if  the  lease  be  not 
good  at  law,  it  shall  never  be  made  good  in  equity.     But  if  a 

lease  be  made  to  a  tenant  at  rack-^ent  without  a  fine, 
[  *135  ]  which  is  voluntary,  yet  if  the  tenant  hath  been  *at 

any  considerable  expense  in  building  or  improving, 
there  the  Court  will  supply  the  defective  execution,  but  other- 
wise not.(^) 

7.  From  this  it  is  clear,  that  the  Master  of  the  Rolls  was  of 

(6)  IT.  R.  705.  (c)  Ambl.  749. 

(rf)    Anon.  2  Freem.  224. 


LESSEE  AT  RACK-RENT.  121 

opinion,  that  where  the  lessee  was  in  the  nature  of  a  purchaser, 
he  should  be  helped  against  a  defective  execution  of  a  power. 
Now,  there  is  no  doubt  that  a  lessee,  even  at  rack-rent,  is  in  a 
sense  a  purchaser.  In  Hinde  and  Collins  it  was  resolved  by  the 
King's  Bench,  that  where  a  man  had  made  a  conveyance  with  a 
power  to  revoke,  and  liad  made  a  lease  reserving  rent,  ivWiout 
other  consideration,  that  it  was  sufficient,  and  a  revocation  of  the 
first  estate  quoad  that  lease,  (e)  That,  however,  depends  upon  a 
different  i)rinciple.  An  agreement  to  make  such  a  lease  may  of 
course  l)e  enforced  in  equity,  by  such  a  lessee,  as  a  binding  con- 
tract. In  a  recent  case  in  the  House  of  Lords,  it  was  said  that 
a  lessee  is  in  law  and  reason  considered  as  a  purchaser,  even  if 
he  takes  at  the  best  rent  that  the  land  be  worth  at  the  time ;  be- 
cause he  forms  his  engagement  and  regulates  his  affairs  upon  the 
faith  of  his  lease,  and  often  expends  his  money  in  the  improve- 
ment of  the  land  in  confidence  that  he  shall  reap  the  benefit  of 
his  expenditure  by  the  enjoyment  of  his  term.  (/)  Gilbert  lays 
down  the  rule,(,«')  that  if  the  lease  under  a  power  be  for  valuable 
consideration,  as  for  money  bona  fide  paid,  or  for  valuable  rent 
reserved,  or  as  a  provision  for  younger  children,  there  the  Court 
will  aid  a  defective  execution  :  but  that  a  voluntary  lease,  if  it  be 
not  pursuant  to  the  power,  cannot  be  sustained  in  equity,  since 
there  is  no  valuable  consideration  to  set  it  up. 

8.  In  a  case  (A)  where  a  married  woman  was  tenant  for  life, 
witli  romuinder  to  such  uses  generally  as  she  should 
'appoint,  and  for  want  of  appointment  to  herself  in  fee,  [  *136  ] 
and  she  granted  a  lease  for  21  years,  not  attested  ac- 
cording to  the  i)0wer.  Lord  Kenyon  decided  the  case  upon  an- 
other point ;  but  he  observed,  that  if  the  question  had  turned 
upon  the  power  of  appointment,  the  lease  not  being  at- 
tested conformably  thereto,  could  not  have  been  supported 
in  a  court  of  law,  yet  even  then,  being  granted  for  a  valu- 
able consideration,  and  merely  defective  in  point  of  form,  a 
court  of  equity  would  have  interfered,  and  directed  a  proper 

(e)  Cro.  Jac.  131,  cited. 

(/ )  Per  Abbot,  C.  J.  in  Long  v.  Rankin,  App.  No.  2.    See  Donnell  v.  Church,  4 
Tr.  Eq   Hep.  G30. 

(g)  Gilb.  Chan.  304,  305. 

(h)  Doe  V.  Weller,  7  Term  Rep.  480. 

Vol.  II.  11 


122  BUGDEN  ON  POWERS. 

lease  to  be  granted.  In  Rattle  y.  Popham,  lie  added,  though 
Lord  Hard-vvicke  in  a  court  of  hiw  hold  himself  bound  to  decide 
against  a  lease  not  duly  executed  according  to  a  power  reserved  ; 
yet  Lord  Talbot,  presiding  in  the  Court  of  Chancery,  upon  a  bill 
filed  by  the  lessee,  decreed  the  lease  to  be  binding  on  the  parties, 
and  made  the  defendant  pay  all  the  costs  in  law  and  equity. 
But  as  we  have  already  seen,  the  decision  in  Rattle  and  Popham 
did  not  involve  the  question  we  are  now  considering,  and  in  Doe 
V.  Woller  the  power  was  a  general  one.  The  judgment  in  Sand- 
ham  V.  Medwin  is  not  favourable  to  the  relief,  and  the  observa- 
tions in  Long  v.  Rankin  were  not  made  with  reference  to  equi- 
table relief,  but  to  show  that  a  lease  granted  to  him  under  a 
power  ought  to  be  supported  if  it  could.  The  point  is  not  con- 
cluded ;  but  it  may  be  thought  that  there  is  no  sufl&cient  ground, 
as  undoubtedly  there  is  no  direct  authority  for  aiding  a  defect  in 
favour  of  a  mere  tenant  at  rack-rent,  although  holding  under  a 
lease,  much  less  can  the  relief  be  afforded  to  a  tenant  from  year 
to  year  holding  under  a  parol  or  even  a  written  contract.  The 
part  performance  of  the  agreement  by  taking  possession,  &c. 
would  not  be  material :  had  an  actual  lease  been  granted,  a  defect 
in  it  could  not  have  been  supplied.  The  lessee  paying  the  full 
value  for  the  estate,  and  that  only  during  his  occupation  of  it, 
cannot  be  put  on  the  footing  of  a  purchaser,  who  would  sustain 
an  actual  loss  if  equity  were  not  to  interpose  its  aid.     But  where 

the  lessee  has  expended  money  on  the  estate,  he  be- 
[  *137  ]  comes  a  *purchaser  of  the  interest  granted  to  him,  and 

may  well  be  held  entitled  to  the  aid  of  equity,  (i) 
9.  In  the  great  case  of  Campljell  v.  Leach, (A;)  the  facts  of 
which  it  is  not  easy  to  collect  from  the  report,  under  a  power  to 
lease  in  possession,  a  new  lease  was  granted  to  a  person  during 
the  continuance  of  a  former  lease  to  him  and  another.  The 
former  lease  was  abandoned,  but  not  surrendered  :  it  was  agreed 
that  the  new  lease  was  bad  at  law,  and  it  was  doubtful  whether 
the  best  rent  was  reserved :  the  bill  was  filed  to  supply  the  defect 
against  the  remainder-man,  by  the  lessee,  who  had  been  at  great 
expense.  The  cause  was  heard  before  Lord  Bathurst,  assisted  by 
Lord   Chief  Baron   Smythe  and  Lord  Chief  Justice   de   Grey. 

(i)  Vide  supra,  p.  93. 

(fc)  Ambl.  740;  App.  No.  26,  the  material  facts  stated  from  Lib.  Reg. 


DEFECTIVE  LEASE   UNDER   A   POWER   AIDED.  123 

The  Lord  Chief  Baron  said,  the  question  arose  upon  the  execu- 
tion of  a  power,  where  courts  of  equity  often  interfere  in  behalf 
of  creditors,  purchasers,  wife  and  children  :  the  present  was  the 
case  of  a  purchaser  :  the  consideration  moving  from  him  was  the 
money  he  had  laid  out.     The  objection  was,  that  it  was  a  lease 
in  reversion^  as  there  was  a  subsisting  lease  of  the  premises  for 
some  years  then  to  come  ;  but  if  such  former  lease  was  in  fact 
given  up  at  the  time  of  this  lease,  as  was  alleged,  it  would,  he 
said,  be  an  answer ;  so  that  if  the  lease  was  fair  in  its  execution 
as  to  the  quantum  of  the  rent  reserved,  he  thought  a  court  of 
equity  ought  to  carry  it  into  execution.     Lord  Chief  Justice  de       ^ 
Grey  was  of  the  same  opinion.  ^^  He  said,  that  the  power  was  of  "\  7Uv£-* 
a  mixed  nature,  not  like  a  power  of  jointuring,  or  power  for 
raising  money.     But  this  was  for  the  benefit  of  the  tenant  for    !^ 
life  and  the  rcmaiudcr-man.     If  executing  the  power  was  for  the 
benefit  of  the  remainder-man^  it  should  receive  a  liberal  construc- 
tion; but  if  tenant  for  life  invades  the  interest  of  the  remainder- 
man in  order  to  benefit  his  oivn  only,  it  should  have  another  con- 
struction.    Lord  Bathurst  being  of  the  same  opinion, 
reversed  a  decree  at  the  Rolls  against  the  lessee,  *and  [  *138  ] 
directed  an  issue  lo  try  whether  the  rent  reserved  was 
the  best  that  could  be  gotten. 

10.  Now  it  is  from  this  case  that  the  rule  may  be  extracted, 
and  it  seems  to  be  this :  that  where  there  is  no  fraud  on  the 
remainder-man,  as  where  the  former  lease  is  abandoned,  although 
not  actually  surrendered,  or  there  is  merely  a  defect  in  the  mode 
of  the  execution  of  the  power ;  for  example,  only  one  witness 
where  two  were  required,  or  a  seal  be  wanting,  or  the  like  ;  in  all 
these  cases  it  should  seem  that  if  the  lessee  is  in  the  nature  of  a 
purchaser,  equity  will  relieve  against  the  defective  executi^  of  a 
power ;  but  where  the  best  reat  is  not  reserved,  or  a  fine  is  paid 
contrary  to  the  terms  of  the  power,  or  the  lease  substantially 
commences  in  futuro,  or  the  interest  of  the  remainder-man  is,  in 
other  respects,  invaded,  as  in  the  cases  of  Temple  v.  Baltinglass, 
and  Sandham  v.  Medwin,  before  cited,  there  it  seems  clear  that 
equity  cannot  relieve :(/)  nor  in  these  cases  can  any  line  be  well 
drawn  as  to  the  quantum  of  excess,  or  defect  in  the  execution  of 

(/)  Sec  Stratford  v.  Lord  Aldborough,  1  Ridgw.  P.  C.  28L 


124  SUGDEN   ON   POWERS. 

the  power.  Tlicrcforc  a  lease  to  eommence  the  day  after  tlie  date 
of  tlie  deed  would  l)e  equally  bad  Avith  a  lease  to  commence  at 
fifty  years  from  the  date.  (I) 

11.  The  priiieii)lc,  that  equity  may  aid  a  defective  execution  of 
a  power  to  lease,  derives  great  support  from  a  case  before  Lord 
Chancellor  Redesdale :  a  tenant  for  life,  with  a  power  of  leasing, 
entered  into  a  contract  to  grant  a  lease,  and  then  died ;  and 
Lord  Redesdale  enforced  the  performance  of  the  contract  against 
the  remainder-man.  He  very  properly  considered  it  as  the  case 
of  a  defective  execution  of  a  power,  and  he  was  of  opinion  that 
the  power  ought  at  least  to  be  construed  as  liberally  as  a  power 
of  jointuring.  He  said  that  it  was  objected  that  a  leasing  power 
differed  from  all  these  cases  of  powers,  and  the  difference  is  said 
to  consist  in  this,  that  in  the  other  cases  the  rcmainder- 
[  *139  ]  man  has  no  *iuterest  in  the  mode  in  which  the  power  is 
executed ;  that  he  claims  nothing  under  it ;  but  that 
under  the  leasing  power  he  claims  the  rent  reserved.  Now  on 
what  groimd  can  it  be  contended  that  that  which  is  a  mere  charge 
upon  a  remainder-man  is  to  receive  a  more  liberal  construction 
than  what  is  not  a  mere  charge  upon  him,  but  may  be  much  for 
»A^v  his  benefit  ?    In  the  case  of  powers  to  make  leases  at  the  best  rent 

u^v  \  tp,  that  can  be  obtained,  it  is  evident  that  the  author  of  the  power 
\i/  ^}^  looks  to  the  benefit  of  the  estate ;  and  that  the  power  is  given  for 
the  benefit  both  of  the  tenant  for  life,  and  of  all  persons  claiming 
after  him  ;  for  where  the  tenant  for  life  can  give  no  permanent  • 
interest,  and  his  tenant  is  liable  every  day  to  be  turned  out  of 
possession  by  the  accident  of  his  death,  it  is  hard  to  procure  sub- 
stantial tenants ;  and  therefore  it  is  beneficial  to  all  parties  that 
the  tenant  for  life  should  have  a  power  to  grant  such  leases.  It 
is  e\ddent  that  the  occupying  tenant  can  afford  to  give  a  better 
rent  under  such  circumstances  thaji  if  he  were  only  to  have  a  pre- 
carious tenure.  This,  therefore,  is  a  power  which  is  calculated 
for  the  benefit  of  the  estate.  Other  powers,  generally  speaking, 
such  as  jointuring  powers,  and  powers  to  make  provisions  for 
younger  children,  are  calculated  for  the  benefit  of  the  family ; 
they  may  be  indirectly  beneficial  to  the  remainder-man,  in  some 
respects,  but  they  are  no  direct  benefit  to  him ;  nor  could  he  con- 
ceive why  these  powers  should  be  construed  more  liberally  than 

(I)  As  to  excess  in  the  execution  of  powers  of  leasing,  vide  supra,  cli.  9. 


DEFECTIVE  EXECUTION  BY  REASON  OF  FRAUD,   AIDED.        125 

powers  to  make  leases,  except  where  it  is  evident  that  such  power 
is  abused.  (/>i) 

12.  So  in  a  case  before  Lord  Kenyon,  he  said  that  a  lease  not 
being  attested  conformably  to  the  power  could  not  l3e  supported 
in  a  court  of  law  ;  yet  even  then,  if  granted  for  a  valuable  con- 
sideration, and  merely  defective  in  point  of  form,  a  court  of  equity 
would  interfere,  and  direct  a  proper  lease  to  be  granted. (w) 


•SECTION  IV. 


[  *140  ] 


OF   EQUITABLE  RELIEF   WHERE   THERE  IS   NO  MERITORIOUS   CONSIDER- 
ATION  IN    THE   APPOINTEE. 


1.  Fraud,  relieved  against. 

2.  Stranger  may  be  relieved  where  per- 

son interested  witholds  the  deed. 

3.  Or  a  wife  is  prevented  by  her  husband. 
5,  Or  the  remainder-man  lie  by  and  per- 
mit expenditure. 


6.  But  fraud  must  be  proved. 

7.  Surprise,  a  ground  for  relief. 

q'  >  Accident  or  disability,  qu. 

10.     Disability  to  sign,  from  the  gout,  not 
aided. 


1.  We  have  hitherto  confined  ourselves  to  the  consideration  of 
the  cases  where  there  is  a  meritorious  consideration  in  the  appoin- 
•tee,  but  in  some  instances  equity  will  relieve  the  appointee  against 
the  defective  execution,  although  he  is  a  mere  stranger.  This  is 
generally  on  the  ground  of  fraud. 

2.  Thus,  where  the  person  interested  in  the  non-execution  of 
the  power  has  the  deed  creating  the  power  in  his  custody,  and  the 
donee  of  the  power  wishing  to  execute  it  sends  for  the  deed,  which 
the  party  refuses  to  deliver,  and  thereupon  the  donee  does  an  act 
with  an  intent  to  execute  the  power,  equity  will  uphold  the  exe- 
cution, although  defective,  by  reason  of  the  fraud  in  -the  person 
who  was  to  have  the  benefit  of  the  original  settlement,  (o) 

3.  So  equity  would  extend  the  same  relief  to  a  case  where  a 


(m)  Shannon  v.  Bradstreet,  1  Sch.  &  Lef.  52. 

(n)  Doe  V.  Weller,  7  Term  Rep.  478;  and  see  Willes,  176,  13  Vcs.  jun.  57G. 
(o)  Sec  3  Cha.  Ca.  67.  83,  84.  89.  93.  108.  122;  Ward  v.  Booth,  3  Cha.  69,  cited; 
and  see  Fort.  333. 

ir 


126  SUGDEN   ON   POWEKS. 

wife  having  a  power  of  revoeatioii  over  au  estate  vested  in  her 
husband  is  desirous  to  exercise  it,  but  the  husljand  hinders  any 
body  from  coming  to  her,  or  prevents  the  execution,  or  obstructs 

the  engrossing  of  the  deed  of  revocation. (j;?) 
[  *141  ]  *4.  In  a  case  before  Lord  Eldon  he  refused  an  injunc- 
tion against  the  husband  of  a  woman  having  a  power  of 
appointment  to  prevent  reasonable  access  to  her  for  the  purpose 
of  obtaining  her  execution  of  a  deed  to  the  efl'ect  of  a  will  she 
had  already  executed,  and  which  it  was  apprehended  her  husband 
would  compel  her  to  revoke.  Lord  Eldon  relied  upon  the  deed 
not  having  been  drawn  by  her  instructions  ;  but  he  doubted 
whether  he  should  interfere  if  that  were  certain.  There  had  been 
many  cases  lohere  persons  had  been  prevented  from  executing  an 
instrument,  and  the  Court  had  considered  and  treated  it  as  if  it 
had  been  executed;  but  here,  suppose  the  lady  should  die  without 
executing  the  deed,  would  it  b^  possible,  he  asked,  for  the  Court 
to  consider  it  done,  when  it  did  not  appear  that  she  gave  instruc- 
tions for  it  ?(<?) 

5.  On  the  ground  of  fraud  also  it  has  been  decided,  that  al- 
though a  power  be  defectively  executed,  and  the  Court  cannot  re- 
lieve the  appointee,  yet  if  the  remainder-man,  witj^i  notice  of  the 
defect,  has  lain  by  a  considerable  time,  and  suffered  the  appointee 
to  expend  money  on  the  estate,  and  acquiesced  in  his  title,  equity 
will  compel  him  to  make  good  the  defect,  (r) 

6.  But  fraud  being  a  thing  odious,  and  never  to  be  intended  or 
presumed,  must  be  strictly  proved.  (5)     Therefore  in  a  case  where 
a  wife  having  a  power  of  revocation  over  an  estate  vested  in  her 
husband,  sent  instructions  to  a  solicitor  to  prepare  a  deed  of  re- 
vocation, and  the  solicitor,  who  was  a  friend  of  the 

[  *142  ]  husband's,  communicated  the  *instructions  to  him,  al- 

(p)  Piggot  V.  Penrice,  Com.  250;  Prec.  Cha.  471;  Vane  v.  Fletcher,  1  P.  Wms. 
354;  Luttrell  v.  Olmius,  11  Ves.  jun.  638,  cited;  and  Segi'ave  v.  Kirwan,  1  Beat. 
157;  Bulkley  v.  Wilford,  2  Cla.  &  Finn.  102. 

(5)  Middleton  v.  MiJdleton,  1  Jac.  &  Walk.  94.  But  the  evidence  was  clear  that 
she  stated  that  the  deed  was  the  result  of  her  instructions ;  that  it  was  done  by  her 
desire,  and  she  wished  to  sign  it,  and  should  not  die  happy  if  she  did  not  sign  it. 
Lord  Eldon  was  afraid  of  exercising  such  a  jurisdiction. 

(r)  Stiles  v.  Cowper,  3  Atk.  G'J2;  Shannon  v.  Bradstreet,  1  Rep.  temp.  Redesdale, 
52;  and  see  Anon.  Bunb.  53;  Stratford  y.  Lord  Aldborough,  1  Ridgw.  P.  C.  281. 

(s)  3  Cha.  Ca.  85. 114. 


DEFECTIVE   EXECUTION   BY   ACCIDENT,   ETC.,   AIDED.  127 

thougli  lie  was  desired  to  keep  tlicm  secret,  and  delayed  perfect- 
ing the  deed  so  long  that  the  wife  died  before  it  was  executed, 
the  Court  censured  the  solicitor  for  his  conduct,  but  denied  relief 
to  the  intended  appointee,  because  no  fraud  was  proved  in  the 
husband  himself.  (0 

T.  Under  this  head  of  fraud  we  may  rank  surprise  ;  for  to  en- 
able equity  to  relieve,  the  surprise  must  be  such  as  is  attended 
and  accompanied  with  fraud  and  circumvention. (m) 

8.  So  it  is  said  that  a  court  of  equity  may  relieve  in  the  cases 
of  accident  or  disability.  Thus,  in  the  Earl  of  Bath's  case,(x) 
where  to  the  execution  of  the  power  six  witnesses  were  required, 
and  three  of  them  were  to  be  peers,  the  Duke  of  Albemarle,  the 
donee  of  the  power,  afterwards  went  over  to  Jamaica,  and  it  was 
said  by  Mr.  Baron  Powell,  that  in  case  the  Duke  had  taken  the 
deed  over  with  him  to  Jamaica,  and  there  had  had  an  intention  to 
revoke  it,  and  had  gone  as  far  as,he  could  to  do  it,  had  made  his 
will,  and  had  six  witnesses  to  it,  he  believed  it  would  be  a^good 
revocation  in  equity,  though  none  of  the  witnesses  were  peers,  be- 
cause of  tlie  disability  he  would  be  under  to  have  such  witnes- 
ses.(;y)  Lord  Chief  Justice  Treby,  and  the  Lord  Keeper,  appear 
to  have  entertained  the  same  sentiments ;  (cr)  and  in  a  modern 
case  Lord  Mansfield  expressed  himself  of  the  same  opinion,  (a) 
Lord  Chief  Justice  Treby,  in  the  Earl  of  Bath's  case,  said  that 
the  accident  or  impossibility  of  complying  with  the  circumstances 
was  another  ground  of  relief  in  equity,  when  the  donee  hath  a 
plain  intention  to  do  it ;  but  then  he  must  do  all  that  he  can,  as 
the  case  of  a  man's  being  obliged  to  pay  or  tender  money  at  such 
a  place,  and  he  fall  sick,  or  lame,  or  bed-ridden,  that  he  caimot 
go  thither,  and  it  is  tendered  by  another  by  his  order, 
or  at  *another  place,  this  beiug  an  act  of  God,  he  [  *143  ] 
thought  it  would  be  a  good  performance  of  the  condi- 
tion. (6)     And  Lord  Chief  Justice  Holt  considered  accident  a 

(0  Piggot  V.  Penrice,  Com.  250;  Prec.  Cha.  471. 

(u)  3  Cha.  Ca.  114,  115. 

(x)  Ibid.  68. 

(y)  Ibid. 

(z)  Ibid.  90.  126. 

(a)  Cowp.  267;  and  see  Piggot  v.  Penrice,  Com.  256. 

(6)  3  Cha.  Ca.  89. 


128  SUGOEN   ON    POWERS. 

good  ground  of  rclicf,(c)  as  where  the  party  was  prevented  by 
sickness. 

9.  Upon  none  of  these  points  has  tlicre  been  any  decision  ; 
and  perhaps  many  of  the  dicta  did  not  mean  to  put  the  case  higher 
than  a  defective  appointment ;  although  excusing  the  defect  on 
account  of  the  accident  or  disability,  as  in  the  case  of  Parker  v. 
Parker,  where  a  man  having  power  to  charge  lands  for  younger 
children,  l)y  a  writing  under  his  hand,  attested  by  three  w^ituesscs, 
did,  in  fear  of  sudden  death,  and  being  absent  from  home,  by  a 
paper,  attested  by  two  witnesses,  charge  his  estate  for  his  children, 
and  this  defect  was  supplied,  because  occaswned  hy  his  being-  ab- 
sent from  home,  and  so  not  being-  a^le  to  have  a  sight  of  the  deed 
where  this  poioer  luas  contained. (jT).  And  yet  it  would  have 
been  equally  aided  had  he  been  in  perfect  health,  quietly  at  home 
in  his  study,  with  the  deed  open  before  him. 

10.  There  is  a  case  in  which  a  deed  executed  under  a  power 
was  lv3ld  to  be  badly  executed  for  want  of  a  signature  (which  was 
required'by  the  power,)  althovgh  the  donee  could  riot  write  by 
reason  of  the  g-out  in  his  hand.(e')  And  notwithstanding  the 
authority  of  the  great  personages  by  whom  the  foregoing  dicta 
were  pronounced,  it  may  be  doubted  whether  equity  ought  to  re- 
lieve on  the  mere  ground  of  accident  or  disability.  How  can  it 
be  ascertained  that  in  the  cases  supposed  the  parties  had  not  the 
sickness  of  the  donee  of  the  power,  or  his  absence  abroad,  in  their 
contemplation  ?  These  are  circumstances  of  ordinary  occur- 
rence :  from'  sickness  few  are  exempt ;  and  it  might  have  been  in- 
tended, that  during  the  party's  absence  from  his  friends,  or  whilst 
his  mind  was  enfeebled  by  illness,  the  power  should  not  be 
executed. 

(c)  Ibid.  108,  109. 

{d)  10  Mod.  467. 

(e)  See  Blockvillc  v.  Ascott,  2  Eq.  Ca.  Abr.  659,  n.(6). 


OF   ELECTION   AND    SATISFACTION.  129 

♦SECTION  V.  •       [  *144  ] 

OF   ELECTION   AND   SATISFACTION. 


1.  Election:  forfeiture  and  compensation,  j  15.  Although  there  is   a  declaration  that 

2.  Confined  to  equity.  I  election  shall  be  raised. 

3.  Applies  to  all  persona  and  all  interests.  1 16.  Robinson  v.  Hardcastle. 


4.  Copyholds,  freeholds:  deeds,  wills 

5.  Conditions  not  a  case  of  election. 

6.  Election  against  heir  although  he  take 
by  descent. 


17.  No  election  when  by  construction  par- 
ties entitled  to  take  absolutely. 

19.  No  election  against  legatee  as  to  real 
estate,  if  devisor  an  infant. 


8.  Election  by  parent  -will  not  bind  his   20.  Or  will  not  duly  attested. 

children.  i  21.  Unless  in  the  case  of  an  express  con- 

9.  Election  although  donor  supposed  be  [  dition: 

had  power.  i  22.  Thelluson  v.  Woodford:  after-purchas- 

10.  Election  raised  upon  appointment  to  a  I  ed  estates:  1  Vict.  c.  26. 

party  not  entitled.  |  23.  No  election  until  funds  cleared. 

11.  Or  an  appointment  to  one  of  two  par-  j  24.  Party  bound  by  acquiescence. 

ties  entitled.  26.  Court  elects  for  infants  and  married 

12.  Or  where    the  donee    delegates   his  '  women. 

power.  j  27.  Consequences  of  election. 

13.  But  not,  if  no  other  fund.  29.  Satisfaction.  * 

14.  Intention  must  appear  on  the  instru-  I  * 

ment.  1 


1.  The  doctrine  of  election  furnishes  another  principle  in  favour 
of  the  defective  execution  of  a  power,  although  there  is  no  meri- 
torious consideration  in  the  appointee.  The  foundation  of  elec- 
tion is  that  no  one  shall  claim  under  and  in  opposition  to  the 
same  instrument.  When  a  man  claims  under  a  deed,  he  must 
claim  under  the  whole  deed  together ;  he  cannot  take  one  clause, 
and  desire  the  Court  to  shut  their  eyes  against  the  rest.  There 
is  a  tacit  condition  annexed  to  all  provisions  of  this  nature,  that 
the  person  taking  do  not  disturls  the  disposition  which 
his  l)cncfactor  *has  made  ;(/)  and  tliereforc  the  true  [  *145  ] 
rule,  following  up  the  principle,  should  be  forfeitm-e  to 
the  disappointed  devisee,  and  not  merely  compensation.  In  many 
cases  compensation  could  not  be  made,  as  in  the  instance  of  a  field 
belonging  to  the  adverse  claimant  given  to  a  devisee,  because  it 
is  in  front  of  his  house ;  could  compensation  in  that  case  be  made 
with  reference  to  the  power  in  the  owner  of  the  land  to  render 
the  house  not  fit  for  habitation  ?  If  compensation  be  the  rule, 
there  are  but  few  cases  in  which  the  testator's  intention  will  be 
effected.     If  the  value  of  the  property  given  to  the  party  who  is 

(/)  Streatfield  v.  Strcatfield,  For.  176. 


130  SUGDEN   ON   POWERS. 

put  to  his  election  be  less  than  the  value  of  his  property  given  to 
a  third  person,  or  only  ei^ual  to  it,  the  party  would  in  ordinary 
cases  elect  to  take  against  the  will.  If  the  property  even  be 
greater,  the  party  having  a  right  to  elect  would  of  course,  in 
every  case  where  he  was  desirous  to  retain  his  own  property,  or 
to  disa])point  the  intention  of  the  testator,  or  the  hopes  of  his  de- 
visee, elect  to  take  against  the  will,  and  pay  a  compensation  to 
the  disap])ointcd  devisee  out  of  the  testator's  own  property,  which 
he  (the  party  electing)  takes  under  the  will.  This  clearly  is  not 
cflfectuating  the  testator's  intention,  for  he  did  not  intend  that  the 
disappointed  devisee  should  have  the  value  of  the  subject  of  the 
gift  paid  to  him  ;  his  meaning  was  to  vest  in  the  party  the  pro- 
perty devised  to  him  ;  and  to  secure  the  acquiescence  of  the  per- 
son really  entitled  to  such  property,  he  makes  another  provision 
for  him.  If  forfeiture  in  favour  of  the  disappointed  devisee  be  the 
rule,  the  testator's  intention  will  in  most  cases  be  fulfilled  ;  and 
if  the  intention  be  not  eflfcctuated,  at  least  the  testator  will  not 
have  made  a  provision  contrary  to  his  intention  for  a  party  who 
elects  to  his  will ;  and  the  disappointed  devisee  will  take  that  pro- 
vision which  the  testator  thought  would  be  a  sufficient  inducement 
to  the  party  electing  to  acquiesce  in  the  dispositions  made  by  the 
will.  (5-) 

[  *14G  ]       *2.  The  doctrine  is  confined  to  courts  of  equity, (//) 
although  it  was  once  treated  as  a  fit  subject  for  legal 
jurisdiction,  (i) 

3.  It  applies  even  to  interests  of  persons  under  disabilities,  as 
infants  and  married  women  ;  nor  is  it  material  whether  the  in- 
terests are  immediate,  remote,  contingent,  of  value,  or  not  of 
value.  (^■) 

4.  Aad  the  rule  applies  as  well  to  copyhold  as  to  freehold 
estates,(/)  and  to  deeds  as  well  as  to  wills. (7/i) 

(g)  But  see  n.  to  1  Swanst.  433;  Tibbits  v.  Tibbits,  19  Ves.  65G;  Jac.  317. 

(A)  Robinson  v.  Hardcastle,  2  Bro.  C.  C  22. 

(i)  First  point  in  Doe  v.  Lord  Geo.  Cavendish,  4  Term  Rep.  743,  n;  but,  as  Lord 
Mansfield  said,  the  ground  struck  liiin  in  considering  the  case,  which  ike  parlies  had 
not  thought  of,  or  adapted  the  case  to. 

(fr)  2  Ves.  jun.  500.  CUf),  097;  3  Ves.  jun  385;  Ardesoife  v.  Bennet,  2  Dick.  463. 

{I)  Rumbold  V.  Rumbold,  Wilson  v.  Mount,  3  Ves.  jun,  G5.  191;  Pettiward  v. 
Prescot,  7  Ves  jun.  541.  • 

(m)  Moore  v.  Butler,  2  Scho.  &  Lef.  249;  Green  v.  Green,  2  Mer.  86;  Dillon  v. 
Parker,  1  Swanat.  359;  Jac.  505. 


NO   ELECTION   IF  NO   OTHER   FUND.  131 

5.  But  wc  must  be  careful  to  distinguish  cases  of  express  con- 
ditions, which  clearly  are  not  cases  of  election. 

6.  It  is  well  established,  that  an  heir  shall  be  put  to  his  elec- 
tion where  the  estate  is  devised  to  him,  although  Ijy  the. rule  of 
law  the  devise  is  inoperative,  and  he  takes  by  descent ;  as,  if  a 
man  being  seised  of  some  lands  in  tail,  and  also  of  others  in  fee, 
devise  the  intailed  lands  to  his  youngest  son,  and  the  fee-simple  es- 
tate to  his  eldest,  who  is  issue  in  tail ;  the  demise  to  the  eldest  is 
void,  and  he  takes  by  descent,  yet  nevertheless  he  shall  be  put  to 
his  election. (w)  (I)  So  where  he  and  other  co-devisees  elect  to 
take  against  the  will,  the  whole  goes  to  the  disappointed  devi- 
sees, (o)  In  the  discussion  of  Thellusson  v.  Woodford,  Sir 
Samuel  Romilly  put  it  as  a  doubtful  point,  whether  the  heir  must 
elect  wliere  a  legacy  is  given  to  him,  and  an  estate  to  a 
stranger,  and  after  the  *will  a  recovery  is  suffered  by  [  *147  J 
the  testator,  whereby  the  will  is  revoked,  and  the  es- 
tate descends  to  the  heir,  and  he  thought  that  the  heir  could  not 
be  put  to  his  election  ;  but  Alexander,  who  was  on  the  other  side, 
thought  it  was  a  case  of  election,  as  was,  he  said,  every  case  in 
which  you  can  look  at  the  will.  The  point,  however,  seems  very 
doubtful,  for  notwithstanding  that  the  testator  intended  the  estate 
to  go  to  the  devisee,  yet  the  will  being-  revoked  as  to  the  devise, 
although  by  construction  of  law,  there  seems  to  be  no  equity 
attaching  on  the  conscience  of  the  heir.  Independently  of  the 
question  of  election,  equity  could  not  relieve  the  devisee  against 
the  revocation  of  the  will. 

7.  Even  where  a  devisee,  by  the  effect  of  an  election  l)y  an- 
other devisee  to  take  against  the  will,  himself  takes  an  interest 
not  intended  for  him  by  the  testator,  but  which  in  part  makes 
good  the  provision  for  him,  he  may  still  insist,  against  the  party 
electing,  to  a  satisfaction  for  the  disappointment,  pro  tanto,  of  the 
devise  contained  in  the  will.(/>) 

8.  Where  interests  are  given  to  a  person,  and  to  his  children 

(n)  Noys  v.  Mordaunt,  2  Yern.  581 ;  Anon.  Gilb.  Eq.  Rep.  15;  Welby  v.  Welby,  2 
Ves.  &  Bea.  187.  See  Rich  v.  Cockell,  9  Ves.  jun.  369;  and  see  White  v.  White,  2 
Dick.  522;  Reg.  Lib.  B.  1775,  fol.  G50— 655. 

(0)  Gretton  v.  Haward,  1  Swanst.  409. 
(P)  Ibid. 

(1)  But  now  by  the  3  &  4  Will.  4,  c.  106,  s.  3,  the  heir  would  take  as  devisee. 


132  SUGDEN   ON  POWERS. 

after  him,  the  claim  of  the  parent  in  opposition  to  the  will  will 
not  bind  the  children,  who  may  elect  for  themselves. ((?)  In  one 
case  it  seems  to  have  been  thought  that  an  election  could  not  be 
raised  upon  an  estate  settled  with  several  limitations,  on  account 
of  the  confusion  which  would  ensue:  tlie  devise  would  sometimes 
be  good,  at  otlier  times  not,  as  the  devisee  in  remainder  sub- 
mitted to  the  will  or  not ;  (r)  but  this  ol)jection  is  not  now  at- 
tended to. 

9.  At  one  period  it  was  holden,  that  where  a  person  supposes 
lie  has  lawful  power  to  dispose  of  an  interest,  and  this  a{)pcars  on 
the  face  of  the  will,  it  is  not  a  case  of  election,  as  it  could  not  be 
proved  that  he  meant  to  dispose  of  the  estate  if  he  had  known  he 
had  no  power  to  dispose  of  it.(s)  This  construction 
[  *148  ]  *has,  however,  been  very  properly  overruled, (^)  upon 
the  ground  of  the  danger  of  speculating  upon  what  the 
testator  would  have  done  had  he  known  the  fact ;  but  where  he 
expressly  makes  the  appointment,  in  case  he  has  power  to  do  so, 
no  case  of  election  arises,  (m) 

10  It  follows,  from  these  principles,  that  where  a  man  having  a 
power  to  appoint  to  A.  a  fund,  which  in  default  of  appointment, 
is  given  to  B.,  exercises  the  power  in  favour  of  C.  and  gives  other 
})enefits  to  B.,  although  the  execution  is  merely  void, (I)  yet  if 
B.  will  accept  the  gifts  to  him,  he  must  convey  the  estate  to  C. 
according  to  the  appointment,  (a;) 

11.  So  where  a  power  is  to  appoint  to  two,  and  he  appoints  to 
one  only,  and  gives  a  legacy  to  the  other,  that  is  a  case  of  elec- 
tion. (?/) 

{q)  Ward  v.  Baugb,  4  Ves.  jun.  623.     See  Long  v.  Long,  5  Ves.  jun.  446. 

(r)  Forrester  v.  Cotton,  Ambl.  £88. 

(s)  Cull  Y.  Showell,  Ambl.  727;  Wood.  App. 

(<)  Whistler  v.  Webster,  2  Ves.  jun.  3G7;  and  see  Wright  v.  Rutter,  2  Ves.  jun. 
673;  Rutter  v.  M'Lean,  4  Ves.  jun.  531;  and  see  Doe  v.  Lord  George  Cavendish,  4 
Term  Rep.  741,  note. 

(«)  Church  V.  Kemblc,  5  Sim.  525. 

(x)  Whistler  v.  Webster,  2  Ves.  jun.  367. 

{y)  Wollen  V.  Tanner,  5  Ves.  jun.  218.  See  Vane  v.  Lord  Dungannon,  2  Scho.  & 
Lef.  118.  See  Beere  v.  Prcndergast,  1  Hay.  &  Jon.  384;  and  qu.  whether  all  the 
children  were  not  bound  to  elect. 

(I)  This  perhaps  cannot  properly  be  called  a  defective  execution  of  the  power,  be- 
cause C.  was  not  the  object  of  the  power,  but  it  affects  the  remainder  so  as  to  put  the 
party  entitled  to  it  to  his  election 


NO  ELECTION  IF  NO  OTHER  FUND.  133 

12.  Again,  where  a  father  authorized  his  wife  to  execute  a 
power  vested  in  himself,  and  gave  the  objects  of  the  power  other 
■benefits,  although  the  father  could  not  delegate  the  power,  yet  it 
was  held  that  any  one  who  would  defeat  what  the  mother  had 
done,  by  what  was  in  truth  no  power,  should  have  no  benefit 
under  the  father's  will.  (2:) 

13.  But  where  there  is  no  other  fund  than  that  appointed,  the 
doctrine  of  election,  which  depends  upon  compensation,  cannot 
apply  :  as  where,  under  a  power  to  appoint  to  children,  the 
lather  appoints  it  improperly,  any   child   entitled    in 

default  *of  appointment  may  set  it  aside,  although  a  [  *149  ] 
specific  part  is  appointed  to  him,  for  the  doctrine  of 
election  can  never  be  applied  but  where,  if  an  election  is  made 
contrary  to  the  instrument,  the  interest  that  would  pass  by  it  can 
be  laid  hold  of  to  compensate  for  what  is  taken  away  ;  therefore 
in  all  cases  there  must  be  some  free  disposable  property  given  to 
the  person,  which  can  Ijc  made  a  compensation  for  what  the  tes- 
tator takes  away,  (a) 

14.  To  raise  a  question  of  election,  a  clear  intention  to  pass 
the  particular  estate  must  appear,(i)  and  it  must  appear  upon 
the  face  of  the  instrument ;  it  cannot  be  compelled  on  any  thing 
dehors. (^c}  But  still  extrinsic  evidence  has  ])cen  allowed  to  show 
what  the  testator  considered  as  his  estate,  and  consequently  to 
determine  what  passed  under  a  general  devise  so  as  to  put  a 
party  to  his  election. (^/)(1) 

(z)  See  1  Ves.  259,  Ingram  v.  Ingram,  cited;  not  reported  as  to  this  point,  2 
Atk.  88. 

(a)  Bristow  v.  Warde,  2  Ves.  jun.  336. 

(6)  Uashwood  v.  Peyton,  18  Ves.  27.     See  1  Bro.  C.  C.  492. 

(c)  Stratton  v.  Best,  1  Ves.  jun.  285;  Finch  v.  Finch,  ib.  535.  See  Judd  v.  Pratt, 
13  Ves.  jun.  1G8;  Dummer  v.  Pitcher,  2  Myl.  &  Kee.  262;  Cooke  v.  Briscoe,  1  Dru. 
&  Walsh,  506. 

(rf)  See  Pulteney  v.  Darlington,  1  Bro.  C.  C.  223;  Pole  v.  Lord  Somers,  Druce  t. 
Denison,  C  Ves.  jun.  309.  385;  and  see  Wright  v.  Rutter,  2  Ves.  jun.  673;  Rutter  t. 
M'Lean,  4  Ves.  jun.  531;  Monck  v.  Lord  Monck,  1  Ball  &  Beatty,  208;  but  sec  For- 
rester V.  Cotton,  Ambl.  389. 


(1)  "See  Webley  v.  LangstaflFe,  2  Degauss.  Ch.  R.  504,  and  upon  the  doctrine  of 
election  the  note  to  that  case  at  page  513." — Note  to  1st  Am.  Ed. 

••  There  id  no  material  diflference  of  principle  in  the  rules  of  interpretation,  between 
wills  and  contracts,  except  what  naturally  arises  from  the  diflferent  circumstances  of 

Vol.  II.  12 


134  SUGDEN   ON   POWERS. 

15.  And  even  where  the  patry  (Ioin«^  the  act  declares  that  every 
person  taking  nnder  his  will  shall  be  liound  by  the  doctrine  of 
e  ection  to  give  effect  to  every  disposition  contained  in  it,  yet  the* 
question  must  first  be  decided  wliether  the  estate  belonging  to  any 
devisee  was  intended  to  be  disposed  of  by  the  will.(e) 

16.  In  Robinson  v.  Hardcastle(/)  the  power  was  to  the  father 
to  apj)oint  to  such  of  his  children  as  he  thought  proper,  and  in 
default  of  appointment,  the  estate  was  limited  to  the  sons  succes- 
sively in  tail,  with  remainder,  subject  to  portions  for  daughters, 

to  the  fiither  in  tail,  remainder  to  the  father  in  fee. 
[  *150  ]  The  father  by  his  will  charged  the  estate  *with  life 
annuities  to  two  of  his  four  daughters,  and,  so  charged, 
devised  it  to  his  only  son  for  life,  with  remainder  to  his  issue  in 
strict  settlement,  with  remainder  as  to  separate  portions  of  the 
estate  to  his  two  other  daughters  in  fee,  and  gave  his  personal  es- 
tate to  his  son.  It  was  held  that  the  appointments  to  the  grand- 
children and  the  remainders  over  to  the  two  daughters  were  void. 
The  son,  as  tenant  in  tail  under  the  settlement,  suffered  a  reco- 
very and  devised  away  the  estate.  Upon  inquiry,  it  appeared 
that  the  personal  property  taken  under  the  will  was  trilling. 
Lord  Thurlow,  upon  the  question  of  election,  said,  if  the  amount 
made  it  worth  arguing,  he  was  against  them  on  this  point ;  he  did 
not  think  this  case  was  within  the  rule.     The  reason  was,  that  he 

(e)  See  Trollopc  v.  Linton,  1  Sim.  &  Stu.  477. 
(/)  2  Bro.  C.  C.  22.  344. 


the  parties.  The  object  in  both  cases  is  the  same,  namely,  to  discover  the  intention. 
And  to  do  this  the  Court  may,  in  either  case,  put  themseU-es  in  the  place  of  the  party, 
and  then  see  how  the  terms  of  the  instrument  aiTect  the  property  or  sul)ject-matter. 
With  this  \iew  evidence  must  be  admissible  of  all  the  circumstances  surrounding  the 
author  of  the  instrument."  1  Greenl.  on  Ev.  §§  287,  288,  280.  Ses  also  1  Phill.  on 
Ev.,  554;  3  Phill.  on  Ev.,  Cowen  &  Hill's  Notes  13tj2,  and  cases  there  cited.  2 
Phill.  on  Ev.  277,  9th  Ed.  Smith  v.  Bell,  6  Peters's  Rep.  75.  Wooster  v.  Butler,  13 
Conn.  R.  317.  Bell  v.  Marten,  3  Harr.  N.  J.  Rep.  167.  Brackenridge  v.  Duncan,  2 
A.  K.  Marsh.  Rep.  51.  Patterson  v.  Leith,  2  Hill's  S.  C.  Ch.  Rep.  IG.  Comfort  v. 
Mather,  2  W.  &  S.  Rep.  480.  Lewis  v.  Lewis,  2  W.  &  S.  Rep.  450.  Kimball  v. 
Morrell,  4  Greenl.  Rep.  3fi8.  Reeves  v.  Reeves,  1  Dev.  Eq.  Rep.  386.  Hayden  t, 
Ewing,  1  B.  Monroe's  R.  113.  1  Jarman  on  Wills,  ch.  12,  p.  349,  Perkins's  note. 
Wigramon  Wills.  11—14. 

As  to  the  doctrine  of  election  see  2  Story's  Eq.  Jur.  §§  889,  1078, 1079, 1080. 1100, 
and  notes,  4th  Ed.,  Boston,  1846,  and  note  (a)  p.  l^i, post. 


HOW   ELECTION   IS   RAISED.  135 

took  this  to  be  an  appointincnt  that  was  [not]  disappointed.  It 
was  a  good  appointment  with  respect  to  the  annuities,  and  being 
an  appointment  to  one  person,  he  could  not  construe  it  a  disap- 
pointed devise  as  to  another.  It  was  not  the  case  Avhere  one  per- 
son devising  to  A.  and  B.,  and  B.  defeating  the  devise  to  A.  is 
obliged  to  make  satisfaction. 

If  this  opinion  can  be  maintained,  it  will  follow  that  where  a 
person  exercising  a  power  creates  some  interests  warranted  by 
the  power  and  others  not,  altliougli  he  makes  other  provisions  for 
the  person  who  takes  in  default  of  appointment,  yet  it  is  not  a 
case  of  election,  because  the  whole  disposition  of  the  settled  estate 
is  not  inoperative.  But  this  can  hardly  be  supported.  The  testa- 
tor intended  the  whole  of  his  disposition  to  take  effect,  and  not 
simply  the  life  annuities  to  two  of  the  daughters  ;  and  his  son,  the 
legatee  of  his  own  property,  had  the  means  of  giving  full  effect  to 
every  part  of  his  father's  disposition.  The  son  took  at  once  under 
and  in  opposition  to  his  father's  will,  which  contradicts  the  rule. 

17.  Where  an  appointment  is  made  to  the  objects  of  the  power, 
for  example,  to  children,  absolutely,  with  a  superadded  direction, 
as  far  as  the  donee  can  lawfully  or  equitably^  that  the 

'shares  shall  be  for  the  children  for  life,  and  after  tlieir  [  *151  ] 
deaths  for  their  children,  the  trusts  for  the  grand-chil- 
dren are  void,  but  no  case  of  election  is  raised.(g') 

18.  In  all  the  foregoing  cases  where  a  case  of  election  was 
established,  we  cannot  fail  to  have  observed,  that  the  interest  did 
not  pass  by  the  instrument ;  but  still  some  nice  distinctions  have 
been  taken  as  to  the  legal  capacity  of  tlie  devisor,  and  tha  validity 
of  the  instrument  to  pass  the  interest  in  case  he  had  actually  been 
entitled  to  it  in  his  own  right.  (1) 

{g)  Carver  v.  Bowles,  2  Rus3.  &  Myl.  301. 


(1)  An  interef?t  in  the  thing  to  l>e  proJuccJ  by  the  power  as  the  proceeds  of  a  sale 
umler  it,  is  not  a  power  coupled  with  an  interest.  The  estate  on  which  the  power  acts 
must  be  in  the  donee,  so  that  he  acts  in  his  own  name;  if  the  estate  has  never  passed 
to  him,  lie  must  act  in  the  name  of  the  party,  giving  the  power  in  whom  the  estate  is 
■vested;  and  to  be  valid,  it  must  be  such  an  act  as  would  be  valid  if  executed  by  the 
donor;  it  is  therefore  revocable  by  death.  Hunt  v.  Rousnianier,  7  Wheat.  204.  Thus 
a  power  given  to  a  mortgagee  is  coupled  with  an  interest  and  not  revocable  by  the 
death  of  the  mortgagor.  Bergen  v.  Bennett,  1  Caiiies  Ca.  Er.  1.  For  a  naked  power 
is  when  to  a  mere  stranger  authority  is  given  to  dispose  of  an  interest  in  which  she 


loG  SUGDEN   ON   POWERS. 

19.  This  doctrine  was   first  discussed  in  a  case  oi"  frequent 
reference. (/t)     There  an  infant  having  personal  estate,  of  which 

(/i)  Ilcarle  v.  Greenbank,  3  Atk.  GUu;  1  Ves.  208. 


had  not  before,  nor  hath  by  the  instniment  creating  the  power,  any  estate  whatever : 
but  when  the  power  is  given  to  a  person  who  derives  under  the  instrument  creating 
the  power,  or  otherwise,  a  present  or  future  interest  in  the  land,  it  is  then  a  power 
rehxting  to  the  land  and  may  be  either  appurtenant  or  in  gross.  Per  Kent,  J.  Id.  15. 
And  this  appurtcn  mt  and  not  in  gross,  for  by  the  exercise  of  the  power  a  riglit  to  the 
equitable  estate  of  the  mortgagor  is  acquired  during  the  existence  of  the  legal  estate 
of  the  mortgagee,  who  is  the  donee.  Wilson  v.  Troup,  2  Cow.  236.  AVhich  str.mgely 
contrasts  with  the  doctrine  of  the  same  court,  that  a  mortgage  'S  a  lien  and  not  an 
estate.  A  beneficial  interest  is,  however,  not  required  to  create  a  power  coupled  with 
an  interest — the  estate  of  an  executor,  guardian,  or  trustee,  is  sufficient  for  that  pur- 
pose.    Bergen  v.  Bennett,  ut  sup.  16. 

A  doctrine  was  advanced  in  Jackson  v.  Burtis,  14  Johns.  301 ,  which  apparently 
conflicts  with  the  rules  above  stated.  It  was  there  held  that  where  two  out  of  eleven 
devisees  in  their  own  right,  were  appointed  executors  with  power  to  sell,  their  estate 
as  devisees  united  in  some  way  with  the  power  and  gave  such  an  i  iterest  as  would 
cause  the  power  to  survive.  It  is  believeil  this  is  the  only  case  ruling  the  point. 
There  was  some  reference  and  perhaps  reliance  on  it,  in  Osgood  v.  Franklin,  2  J.  C. 
R.  20,  but  the  case  there  and  in  14  Johns.  391,  were  ruled  on  a  distinct  ground  of  a 
trust.  In  Jackson  v.  Given,  16  Johns.  171,  the  same  learned  Judge  seems  doubtful  of 
the  position,  for  he  advances  it  only  as  the  inclination  of  his  mind.  It  seems  scarcely 
possible  to  sustain  the  decision  on  that  ground.  If  the  power  was  given  raiione  officii 
it  of  course  survived,  and  that  it  was  so  given  seems  to  be  the  more  probable  con- 
struction of  modern  times.  Craig  v.  Craig,  7  Dana,  9;  Heron  v.  Ilotfner,  3  Raw  396. 
Though  the  contrary  was  held  in  Conklin  v.  Egerton,  21  Wend.  430.  Hence  the 
question  of  interest  in  that  view  was  immaterial.  But  suppose  it  to  be  material,  could 
the  interest  or  estate  under  the  will  unite  with  the  power  given  ratione  officii?  It 
may  be  questioned  whether  the  devisees  were  not  in  by  descent,  as  the  devise  was  to 
all  children  equally,  and  hence  the  will  was  so  far  inoperative,  and  the  power  in  such 
case  was  held  to  be  a  naked  one  in  Jackson  v.  Schauber,  7  Cow.  187.  But  it  seems 
clear  that  where  two  rights  vest  in  one  person  in  dififerent  capacities,  they  are  to  be 
considered  as  if  vesting  in  two  persons.  4  Whart.  27;  7  Watts,  386;  1  Watts,  370; 
2  Raw.  420;  6.  Mad.  235.  That  a  power  and  estate  may  be  thus  divided  seems  not 
to  be  attended  with  greater  difficulties  than  where  a  partial  estate  only  is  vested  in 
the  donee.  The  power  moreover  would  be  liable  to  be  destroyed  by  the  act  of  the 
party.  Conceding  however  the  unity  of  the  interest  and  the  power,  the  decision  can- 
not possibly  stand  on  this  ground.  If  it  united  with  the  estate,  it  Wixs  with  that 
estate  which  was  vested  in  the  executors  personally;  this  was  a  fee  in  two  eleventh 
parts,  and  the  estate  conveyed  was  the  entirety.  Upon  nine  elevenths  then  as  there 
was  CO  estate  in  them,  the  conveyance  of  the  executors  operated  under  the  power 
alone,  to  render  which  valid  in  that  case  required  it  should  survive,  and  consequently 
be  vested  in  them  ratione  officii.  This  case  might  therefore  be  cited  as  an  authority 
to  show  that  a  power  to  any  executors  hereinafter  named  was  vested  ratione  officii. 
In  Bloomer  v.  Hill  the  authority  of  tliis  doctrine  is  questioned,  but  no  case  has  been 


HOW  ELECTION  IS  RAISED.  137 

she*  had  ability  to  dispose,  aud  a  power  over  a  real  estate,  to 
which  she  was  entitled  in  default  of  appointment,  bequeathed  the 
personalty  to  her  only  child,  and  appointed  the  estate  to  stran- 
gers. And  Lord  Hardwickc  held  the  appointment  to  be  void, 
and  that  this  was  not  a  case  of  election,  because  the  will  was  void 
as  to  the  real  estate,  on  account,  as  he  oljservcd  in  another  case,(i) 
of  her  infancy ;  and  he  added,  as  it  would  if  she  had  been  a  feme 
sole.     This  was  a  disabilitij  in  the  person. 

20.  Lord  Hardwicke  said,  it  was  like  the  case  where  a  man 
executed  a  will  in  the  presence  of  two  witnesses  only,  and  devises 
his  real  estate  from  his  heir-at-law,  and  the  personal  estate  to  the 
heir-at-law ;  this  is  a  good  will  as  to  personal  estate  ;  yet  for  want 
of  being  executed  according  to  the  Statute  of  Frauds,  is  bad  as  to 
the  real  estate  ;  and  he  said  he  should  in  that  case  be  of  opinion, 
that  the  devisee  of  the  real  estate  could  not  compel  the  heir-at-law 
to  make  good  the  devise  of  the  real  estate  before  he  could  entitle 
himself  to  his  personal  legacy,  because  here  was  no  will  of  real 
estate  for  want  of  proper  forms  and  ceremonies  .required  by  the 
statute.  This  doctrine  has  been  recognized  and  acted 
upon  *by  Lord  Alvanley,(/(;)  Lord  Kenyon,(/)  and  Lord  [  *152  ] 
Eldon  ;(m)  for  although  the  will  cannot  be  read  without 

(0  2  Ves.  14.     Se«  1  Vict.  c.  26.  s.  7. 

{k)  tx-parte  the  Earl  of  Ilchester,  7  Ves.  jun.  372. 

(/)  Carey  v.  Askew,  8  Ves.  jun.  492,  cited  by  Romilly;  and  in  the  argument  of 
Thellusson  &  Woodford,  infra,  MS.     See  Dundas  v.  Dundas,  1  Dow  k  Chirk,  349. 

{m)  Sheddon  v.  Goodrich,  8  Ves.  jun.  481 ;  Ker  v.  Wauchope,  1  Bligh,  1 ;  Gardner 
V.  Fell,  1  Jac.  &,  Walk.  22. 


met  with  directly  overruling  it.  Jackson  v.  Schauber,  7  Cow.  187,  is  the  nearest. 
There  was  a  power  and  direction  to  the  executors  to  sell  and  pay  certain  legacies,  the 
residue  to  one  of  them.  The  case  does  not  state  whether  there  was  any  devise  of  the 
land;  if  there  was  not,  however,  it  must  have  vested  in  the  executors,  who  were  heira 
with  others.  The  Court  held  this  was  but  a  naked  power  not  breaking  the  descent, 
which  a  power  coupled  with  an  interest  does.  Burr  v.  Sim,  1  Whart.  2G6.  Unless, 
therefore,  there  be  a  distinction  as  to  the  efiFect  of  giving  a  power  by  an  ancestor  to 
his  executor,  being  one  of  his  heirs  in  by  descent  and  to  one  in  by  devise,  it  seems  that 
the  rule  of  Jackson  v.  Burtis  is  overturned  by  that  in  Jackson  v.  Schauber. 

Allison  V.  Kurtz,  2  Watts  R.  18G,  is  similar  to  Jackson  v.  Burtis,  except  the  power 
was  rather  in  the  nature  of  a  trust,  there  being  a  direction  to  sell,  and  there  it  was 
held  that  the  deed  could  only  operate  under  the  power,  there  being  no  interest  in  the 
and  but  in  the  proceeds.  M'Murtrie's  note  to  2  Crabb  on  Real  Property,  on  p.  681, 
Johnson's  Law  Library,  No.  166. 

12* 


138  SDGDEN   ON  POWERS. 

the  devise  in  it,  yet  as  Lord  Alvauley  correctly  expressed  it,  a 
Judge  can  say,  for  tlie  Statute  of  Frauds  enables  him,  and  he  is 
bound  to  say,  that  if  a  man  by  a  will  unattested  gives  both  real 
and  personal  estate,  he  never  meant  to  give  the  real  at  all.(M) 

Lord  JLirdwicke,  however,  determined  that  where  an  express 
condition  is  annexed  to  the  ])crsonal  legacy,  the  heir-at-law  must 
make  good  tlie  devise  of  the  realty,  or  give  up  his  legacy  ;(o)  and 
although  this  distinction  has  been  constantly  disapproved  of,  yet 
it  has  always  been  acted  upon  and  cannot  now  be  dis- 
turbed. (/?)(!) 
]_  *153  ]  *22.  A  point  lately  arose  in  the  great  cause  of  Thel- 
lusson  and  Woodford,(^)  which  again  called  this  doc- 
trine into  question.  Thellusson,  by  his  will  duly  executed  to  pass 
real  estates,  gave  legacies  to  his  heir-at-law,  and  directed  that  all 
contracts  for  the  purchase  of  estates  which  he  should  enter  into 
before  his  death,  should  be  completed  by  his  trustees,  who  should 
stand  seised  thereof  to  the  uses  mentioned  in  his  will.  He  did 
purchase  estates,  and  did  not  re-publish  his  will.  Some  were 
actually  conveyed  to  him,  the  contracts  for  others  remained  my?er^ 
The  question  was,  whether  the  heir  should  be  put  to  his  election. 
The  case  was  elaborately  argued.     Tlie  principal  argument  for 

(n)  Buckeridge  v.  Ingram,  2  Ves.  jun.  606;  see  now  1  Vict.  c.  2G. 

(0)  Boughton  V.  Boughton,  2  Ves,  12. 

(p)  Carey  v.  Askew,  Sbeddon  v.  Goodrich,  ubi  sup.;  and  Thellusson  v.  Woodford, 
infra. 

(5)  Seed  Ves.  jun.  235.  237. 

(1)  In  Thellusson's  case,  Lord  Erskine  said  the  general  case  of  election  is  good. 
As  to  the  exceptions,  an  infant  may  bequeath  his  personalty,  but  not  so  as  to  his 
realty.  An  infant  having  real  and  personal  pi-operty,  and  having  both  capacity  and 
power  to  bequeath  the  personalty,  gives  the  personalty  under  the  idea  that  he  can  dis- 
pose of  his  realty;  now  I  conceive,  with  submission,  that  the  infant's  will  may  be 
read.  If  I  had  originally  had  to  decide  this  point,  I  would  have  held  it  a  case  of 
election ;  so  of  a  feme  covert,  I  want  to  know  why  the  husband  should  not  be  put  to 
his  election;  I  cannot  see  the  common  sense  of  that  exception,  but  I  am  bound  by 
authorities;  so  where  a  will  is  executed  in  the  presence  of  two  witnesses,  why  should 
it  be  read  so  as  to  give  the  heir  the  personalty  ?  I  would  never  have  given  him  the 
legacy.  How  pure  the  laws  of  England  would  be  were  it  not  for  these  subtleties  I 
But  I  dare  not  decide  this  case  against  the  authority  of  Lord  Hard wicke:  MS.  In 
Carey  v.  Askew,  as  stated  by  Sir  Samuel  Romilly,  Lord  Kenyon  said,  he  should  have 
found  it  difficult  to  distinguish  the  cases;  but  he  felt  himself  bound  by  Lord  Hard- 
wicke's  decision,  although  he  thought  Boughton  v.  Boughton  wrong.  It  was  settled 
that  the  heir  could  not  be  put  to  his  election  without  an  express  condition,  and  you 
cannot  presume  a  condition.     Express  conditions  were  not  like  this  case.     MS. 


ELECTION   AS  TO   AFTER-PURCHASED  ESTATES.  139 

the  heir-at-law  was,  that  there  was  no  case  in  which  the  heir-at- 
law  was  ])ut  to  his  election  as  to  estates  which  came  to  him  as 
heir.  This  was  strongly  urged,  and  the  case  was  distinguished 
from  cases  of  express  conditions  ;  and  it  was  neatly  argued,  that 
there  were  three  requisites  to  a  devise  ;  1st,  age  ;  2d,  possession  ; 
and  od,  three  witnesses  ;  and  that  any  will  in  which  any  of  these 
was  wanting  was  void,  and  not  a  case  of  election.  Well,  here 
the  second  was  wanting,  and  the  question  of  election  could  not 
arise  any  more  than  if  the  devisor  had  been  an  infant.  On  the 
other  side,  it  was  insisted,  that  there  being  no  disability  in  the 
person  of  tlie  devisor,  this  was  a  case  of  election.  Suppose  a 
legacy  to  be  given  to  a  stranger,  and  a  legacy  to  the  heir,  and  a 
devise  of  the  stranger's  estate  to  a  third  person  ;  that,  it  was 
said,  was  a  case  of  election.  Then  suppose  the  testator  to  pur- 
chase the  estate ;  how,  it  was  asked,  could  that  be  said  not  to  be 
a  case  of  election  ?  It  was  determined  that  the  heir  should  be 
put  to  his  election, (r)  and  the  decree  was  af&rmed  in  the  House 
of  Lords,(s)  The  statute  of  1  Vict.  c.  26,  s.  24, 
has  now  rendered  the  aid  of  equity  unnecessary  *in  [  *154  ] 
such  a  case,  as  all  after-purchased  estates  will  now 
pass  by  a  prior  will,  unless  a  contrary  intention  appear  by  the 
will. 

23.  A  person  is  never  put  to  his  election  till  the  funds  are 
clearly  ascertained,  so  that  he  may  know  exactly  what  he  is  to 
receive  as  a  compensation  for  that  which  he  gives  up  ;(Q  and 
the  party  may  file  a  l)ill  to  have  the  state  of  the  fund  ascer- 
tained. (iO(l) 

24,  Where  the  state  of  the  fund  is  free,  and  the  party  has 

(r)  Thellusson  v.  Woodford,  Aug.  1806,  MS.;  13  Ves.  jun.  209. 
(s)  Rendlesham  v.  Woodford,  1  Dow,  249.     See  Back  v.  Kett,  Jac.  534;  Johnson 
V.  Telford,  1  Rus3.  &  Myl.  244;  Churchman  v.  Ireland,  1  Russ.  &  Myl.  250. 
(0  Wake  V.  Wake,  1  Ves.  jun.  335;  and  see  2  Ves.  jun.  370. 
(u)  Butrickc  v.  Broadhurst,  1  Ves.  jun.  171;  3  Bro.  C.  C.  88. 

(1)  SeeKenney  v.  Beverley,  2  Hen.  &  Munf.  340,  per  Tucker,  J.,  citing  a  number 
of  authorities.  Van  Orden  v.  Van  Orden,  10  Johns.  R.  30.  O'Driscol  v.  Koger,  2 
Desauss.  Ch.  Rep.  295;  and  see  and  consider  Snel grave  v.  Snelgrave,  4  Desauss.  Ch. 
Rep.  274,  andGest  et  al.  v.  Cattell's  Heirs,  2  Desauss.  Ch.  Rep.  53.  [Note  to  Ist 
Am.  Ed.]  "  Election  in  the  sense  in  which  Equity  employs  it,  is  the  obligation 
imposed  upon  a  party   to  choose  between  two   inconsistent  or  alternative  rights  or 


140  SUGDEN   ON   POWERS. 

acijuioscccl  a  long  limo,  he  will  be  lield  to  have  elected,  although  he 
has  not  expressly  done  so  ;(<;)  but  where  the  I'lind  is  eiiil)aiTassed, 
a  long  acquiescence  has  been  held  not  to  l>iiid  the  claimant,(x) 
and  a  fortiori,  the  mere  receipt  of  gifts  under  the  will  for  a  short 
period  will  not  have  that  ctlect ;(//)  and  where  a  widow  released 
her  dower,  and  elected  to  take  under  her  husband's  will,  and  the 
provision  for  her  was  afterwards  claimed  l)y  creditors,  she  was  al- 
lowed to  resort  to  her  dower,  notwithstanding  her  election. (-)(!) 

(i")  Butricke  v.  Broadhurst,  ubi  sup.;  ArJesoife  v.  Bennet,  2  Dick.  463. 

(r)  Beaulieu  v.  Lord  Caraigan,  .\mbl.  533;  6  Bro.  P.  C.  232.  See  1  Ves.  jun.  172 
33G;  Yate  v.  Mosely,  5  Ves.  jud.  •183,  484. 

(y)  Wake  v.  Wake,  1  Ve3.  jun.  335;  Rumbold  v.  Rumbold,  3  Ves.  jun.  65,  See 
Stratford  v.  Powell,  1  Ball  &  Beatty,  1. 

(r)  Kidney  v.  Cousmaker,  12  Ves.  jun.  136. 

claims,  in  cai'es,  where  there  is  clear  intention  of  the  person,  from  whom  he  derives 
one,  that  he  should  not  enjoy  both.  Every  case  of  election  prc-supposes  a  plurality 
of  gifts  or  rights  with  an  intention,  express  or  implied,  of  the  party,  who  has  a  right 
to  control  one  or  both,  that  one  should  be  a  substitute  for  the  other.  The  party  who 
is  to  take  has  a  choice,  but  he  cannot  enjoy  the  benefits  of  both."  2  Story's  Eq. 
Jur.  §  1075,  §  1083.  See  the  following  American  authorities,  Fuller  v.  Ycates,  8 
Paige's  N.  Y.  Ch.  Rep.  325.  Jackson  v.  Churchill,  7  Cowen's  R.  287.  Pickett  v. 
Peay,  2  S.  C.  Const.  Rep.  740.  Kennedy  v.  Mills,  13  Wend.  R.  553.  Bailey  v. 
Duncan,  4  Monroe,  R.  265.  Bull  v.  Church,  5  Hill's  N.  Y.  Rep.  206.  Shaw  v. 
Shaw,  2  Dana,  R.  342  Duncan  v.  Duncan,  2  Y'^eates,  R.  302  Shotwell  v.  Dedham, 
3  Ohio  R.  1.  Adsit  v.  Adsit,  2  Johns.  Ch.  R.  448.  Gordon  v.  Steres,  2  Hill's  Ch. 
(S.  C.)  Rep.  48.  Herbert  v.  Wren,  7  Cranch,  S.  C.  Rep.  370.  Hall  v.  Hall,  2 
McCord,  Ch.  (S.  C.)  R.  280.  Smith  v.  Kniskcrn,  4  Johns.  Ch.  R.  90.  Jonea  v. 
Powell,  6  lb.  194.  Kennedy  v.  Nedrew,  etux  1  Dall.  R.  414,  per  McKean,  Ch.  J.  p. 
418.  Evans  v.  Webb,  1  Yeates,  11.  424.  Webb  v.  Evans,  1  Binn.  R.  566.  Hamil- 
ton V.  Buckwalter,  2  Yeates,  R.  389.  McCuUough  v.  Allen,  3  Yeates,  R.  10.  Crear- 
craft  V.  Wions,  Addison's  (Penn.)  R.  350.  Semple  v.  Semple,  2  Yeates,  R.  433. 
Crearcraft  v.  Dille,  3  Id.  79.  Wilson  v.  Hamilton,  9  S.  &  R.  R.  424.  Kline  v. 
Gr.ayson,  4  Binn.  R.  225.  Reigan's  Estate,  7  Watts's  R.  438.  Adlum  v.  Yard,  1 
Rawle,  R.  171.  City  of  Philadelphia  v.  Davis,  1  Whart.  R.  499.  Allen  v.  Getz,  2 
Penn.  U.  310.  Cauftnian  v.  Cauffman,  17  S.  &  R.  R.  16.  Heron  v.  Hoffner,  3 
Rawle  R.  393,  S.  P.  Stark  ct  al.  v.  Hunton  et  al.  1  Saxton,  N.  J.  Ch.  Rep.  216. 
225.  Gest  v.  Flock,  1  Green's  N.  J.  Ch.  Rep.  108.  Blunt  v.  Gee,  5  Call's  Rep.  481. 
Quarlcs  v.  Garnctt.  4  Desauss.  Ch.  Rep.  146.  Upshaw  v.  Upshaw,  2  Hen.  &  Munf.  It 
3.  Allen  v.  Pray,  3  Fairf.  (Me.)  Rep.  138.  Reed  v.  Dickerman,  12  Pick.  R.  149. 
Perkins  v.  Little,  1  Green.  R.  148.  Steel  v.  Fisher,  1  Edw.  Ch.  Rep.  435.  Clay  v. 
Hart,  7  Dana  R.  6.  Watkins  v.  Watkins,  7  Yerger  R.  283.  Judge  Story  in  2  Eq. 
Jur.  §  1075  et  seq.ch.  xxx.  who  cites  and  relies  upon  Mr.  Swanston's  note(a),  to 
Gretton  v.  Haward,  1  Swanst.  R.  433 — 458,  where  the  English  cases  before  1818  will 
be  found  collected  and  commented  on  :  and  in  note(6),  1  Swanst.  R.  394,  the  case  of 
Dillon  v.  Parker,  where  ai  equally  elaborate  and  able  note  may  be  found.  Arnold  v. 
Eempstead,  2  Eden's  R.  230,  Mr.  Eden's  note. 


EFFECT   OF   ELECTION   IN   OPPOSITION.  141 

25.  If  the  party  lias  mortgaged  the  interest  he  takes  in  his  own 
right,  and  then  is  suffered  to  elect  to  take  under  the  will,  the 
mortgage  must  be  satisfied  out  of  the  interest  provided  for  him  by 
the  will.(fl) 

(o)  Rumbold  v.  Rumbold,  3  Ves.  jun.  65. 

To  constitute  an  election  by  a  widow  to  accept  a  legacy  bequeathed  to  her  in  lieu  of 
dower,  there  must  be  something  more  than  a  mere  intention  or  determination  to 
elect. 

A  declaration  of  such  intention,  even  if  made  to  those  interested,  will  not  of  itself 
constitute  an  election  at  law. 

There  must  be  some  decisive  act  of  the  party,  with  knowledge  of  her  situation,  and 
rights,  to  determine  the  election,  or  an  intentional  acquiescence  in  such  acts  of  others 
as  are  not  only  inconsistent  with  her  claim  of  dower,  but  render  it  impossible  for  her 
to  assert  her  claim  without  prejudice  to  the  rights  of  innocent  persons. 

Signing  a  petition  to  the  legislature  for  a  sale  of  the  real  estate  of  the  testator,  to 
enable  the  executors  to  pay  the  legacies,  and  execute  the  various  trusts  mentioned  in 
the  will,  if  the  petition  was  never  acted  on,  will  not  constitute  a  legal  election.  Nor 
will  the  fact  tliat  an  answer  to  a  Bill  in  Chancery  was  filed  in  her  name,  assenting  to  a 
decree  for  the  sale  of  the  real  estate  of  the  testator,  to  carry  into  effect  the  trusts  of 
the  will  (one  of  wliich  was  the  payment  of  the  annuity  bequeathed  to  the  vidow  in 
lieu  of  her  dower),  and  a  decree  made  for  such  sale,  constitute  an  election,  if  it  ap- 
pear that  she  was  merely  quiescent  in  the  matter,  and  that  the  answer  as  filed  was 
neither  signed  nor  assented  to  by  her. 

What  acts  of  acceptance  or  acquiescence  are  sufficient  to  constitute  an  election,  can- 
not be  designated  with  sufficient  precision  to  justify  a  general  rule.  Each  case  as  it 
occurs  must  be  governed  by  its  own  peculiar  circumstances.  The  general  questions 
are,  whetlier  the  parties  acting  or  acquiescing  were  cognizant  of  their  riglits ;  whether 
they  intended  to  make  an  election ;  whetlier  they  can  restore  the  individuals  atfected 
by  their  claim  to  the  same  situation  as  if  the  acts  had  never  been  performed;  or 
whether  these  inquiries  are  precluded  by  lapse  of  time.  English  v.  English,  2 
Green's  N.  J.  Ch.  Rep.  504—500. 

A  testator  by  his  will  directed  that  when  his  youngest  child  attained  the  age  of 
twenty-one  years,  all  his  real  estate  should  be  sold  or  divided,  whichever  a  majority 
of  his  children  then  living  should  think  best;  and  invested  his  executors,  and  the  sur- 
vivor of  them,  with  full  power  and  authority  to  sell,  either  at  public  or  private  sale, 
as  to  them  might  seem  most  advantageous,  all  his  real  estate,  in  case  it  should  be  de- 
termined by  the  election  of  his  children  aforesaid,  to  make  sale.  Held,  that  the  de- 
visees before  electing  whether  to  sell  or  diviile  the  land,  had  a  right  to  c;ill  upon  the 
executor  to  decide  whether  in  case  of  a  sale  he  would  sell  at  public  or  private  sale; 
and  if  the  executor  did  determine  in  what  manner  he  would  sell,  and  the  devisees 
were  influenced  by  that  determination  in  making  their  election  to  have  the  pn  perty 
sold,  the  executor  could  not  alter  his  determination  without  giving  the  heirs  an  op- 
portunity of  altering  their  decision  upon  the  question  of  sale  or  division.  Wright's 
executor  v.  Wright,  3  Green's  N.  J.  Ch.  Rep.  28.  1  Jarman  on  Wills,  385.  397, 
notes  Perkins's  Ed.,  where  many  cases  both  English  and  American  are  cited. 


142  SUGDEN  ON   POWERS. 

2<).  Where  the  claimant  is  an  infant,  or  feme  covert,  it  is  usu- 
ally referred  to  the  iMaster,  to  see  which  is  most  for  their  benefit, 
to  take  under  or  ajzainst  the  will,  Imt  where  the  interest  given  by 
the  will  is  manifestly  a  l»etter  interest,  no  reference  will    be 

niade.(^) 
[  *155  ]  *'21.  Where  a  ])erson  elects  to  take  in  opposition  to 
the  will,  the  interest  given  to  him  will  ho  a]»])lied  in 
comjjensation  of  the  disappointed  devisees. (c)  But  the  estate 
thus  taken  in  opposition  to  the  will  of  course  vests  in  the  party, 
witli  all  the  legal  consequences  attached  to  it.  Thus  where  a 
tenant  in  tail  devised  away  the  estate,  and  gave  the  issue  in  tail, 
who  was  a  married  woman,  and  also  her  husband,  other  benefits 
by  his  will,  she  elected  to  take  her  estate-tail  in  opposition  to  the 
will,  but  her  husband  of  course  took  under  the  will,  then  his  wife 
died,  and  he  entered  as  tenant  by  the  courtesy  ;  and  it  was  con- 
tended, that  as  lie  took  under  the  will,  he  could  not  claim  in  op- 
position to  it ;  but  it  was  ruled,  that  his  wife  took  the  estate  with 
all  its  legal  incidents,  and  that  consequently  he  was  entitled  to 
be  tenant  by  the  courtesy  in  right  of  her  seisin,  although  he  claim- 
ed under  the  will  in  his  own  right,  (f?) 

28.*  In  a  case  where  the  income  of  a  Scotch  heritable  bond  and 
other  property  was  given  to  the  widow  for  life,  and  she  was  en- 
titled to  right  of  terce  in  the  bond,  and  a  case  of  election  being 
raised  by  the  will,  the  heir  elected  to  take  the  bond  against  the 
will,  by  which  the  income  intended  for  the  widow  under  the  will 
was  fliminished,  still  as  she  elected  to  take  under  the  will,  she 
was  held  bound  to  bring  in  her  terce  as  part  of  the  testator's 
estate. ((?) 


29.  Closely  allied  to  election  is  the  doctrine  of  satisfaction  ;(1) 
where  the  interests  of  the  objects  of  the  power  arc  satisfied  by 

(6)  Wilson  V.  Lord  John  Townshend,  2  Ves.  jun.  603. 

(c)  See  before,  and  Anon.  Gilb.  Eq.  Rep.  15;  Ward  v.  Baugh.  4  Ves.  jun.  627. 

{(J)  Lady.Cavan  V.  Pulteney,  2  Ves.   jun.  514;  3  Ves.  jun.   381.     Sec  Brodie  v. 
Barry,  2  Ves.  &  Bea.  127. 

(e)  Reynolds  v.  Torin,  1  Russ.  129. 


(1)  See  2  Story's  Eq.  Jur.  c.  xxx.  §  1099,  1123. 


EFFECT   OF   ELECTION   IN   OPPOSITION.  143 

the  donee  of  the  power,  their  claim  on  the  fund  ceases. (/)  As 
this  question,  however,  seldom  arises  upon  powers,  and  the  doc- 
trine of  satisfaction  is  already  discussed  by  other  writers,  I  shall 
not  stop  to  inquire  what  is  in  equity  deemed  a  satisfac- 
tion. *But  it  may  be  remarked  that,  as  in  case  of  elcc-  [  *156  ] 
tion,  so  in  cases  of  satisfaction,  parol  evidence  is  admis- 
sible to  show  that  the  testator  considered  the  property  subject  to 
the  power  as  part  of  his  own  property. (^'')  And  to  create  a  case 
of  satisfaction,  a  gift  must  move  from  the  person  himself.  There- 
fore if  a  man  having  a  charge  on  his  estate,  and  also  a  power  over 
his  wife's  estate,  both  in  favour  of  his  cliild,  appoint  a  sum  to  be 
paid  to  the  child  out  of  his  wife's  estate,  in  satisfaction  of  the 
charge  on  his  own,  the  declaration  as  to  the  satisfaction  will 
be  entirely  void;(A)  Satisfaction  can  never  be  presumed  where 
the  intention  of  the  donor  is  expressly  stated ;  as  where  a  man  by 
his  will  appoints  a  i)ortion  under  a  power,  and  gives  an  annuity 
out  of  his  own  property  to  the  same  child,  and  then  upon  mar- 
riage gives  the  child  a  portion,  which  he  declares  to  be  in  satis- 
faction of  the  annuity  given  l)y  the  will,  no  presumption  of  satis- 
faction can  1)0  raised  as  to  the  portion  appointed  under  the 
power,  (i)  • 

(/)  Smith  V.  Lord  Camelford,  2  Ves.  jun.  698;  Folkes  v.  Western,  9  Ves.  jun. 
456,  see  post,  ch.  15;  Savage  y.  Carroll,  1  Ball  and  Beatty  2G5. 

(g-)  Hinchliffe  V.  Hinchlifle.  3  Ves.  516;  and  see  Bruce  v.  Dennison,  6  Ves.  jun. 
309;  Clementson  v.  Gandy,  1  Kee.  309. 

(A)  Roberts  v.  Bixall,  2  Eq.  Ca.  Ab.  668,  pi.  19.    See  the  case  in  vol.  1, 486,  supra. 

(i)  Burgess  v.  Mawbey,  10  Ves.  jun.  819.     See  Powys  v.  Mansfield,  6  Sim.  528. 


144 


SDGDEN   ON   POWERS. 


[  -157  ] 


•SECTION  VI. 

OF   NON-EXECUTION. 


1.  Not  aided  even   in   case  of   sudden 

death. 

2.  Power  not  executed  for  creditors. 

3.  Distinction   wliere  a  power  is  in  the 

nature  of  a  trust. 

4.  Articles  creating  a  power  lield  to  give 

an  interest. 

6.  Harding  v.  Glyn:  power  a  trust,  al- 
though exclusive. 

'I.  Observation  on  the  cases. 

10.  Power  vvitli  a  gift  by  implication. 

11.  Duke  of  .Marlborough  v.  Godolphin,  a 

power  only:  doubted. 

12.  Distinction    between    that    case  and 

Harding  v.  Glyn. 

14.  Crossling  v.  Crossling,  with  observa- 
tions. 

IG.  Power  to  appoint  to  one  of  a  class,  no 
gift  liy  implication. 


18.  Cases  establishing  the  implication. 
2o.  Gift  implied  from  the  limitation  over. 

24.  Implication  co-extensive  witli  power. 

25.  Implication  rebutted  by  gift  over  in 

default  of  appointment. 

27.  Gift  to  the  objects  with  a  power  of 
distribution. 

S3.  Power  in  inaccurate  settlement  con- 
strued to  give  the  property. 

34.  What  is  absolute  property  with  a  sim- 
ple request  and  not  a  power. 

36.  Wright  v.  Atkyns. 

37.  Ileneage  v.  Lord  Andover. 
40.  Donee  not  deprived  of  power. 

43.  Court  never  exercises  a  discretionary 

power. 

44.  Gift  implied  and  power  not  exercised; 

an  equal  distribution. 


1.  Some  of  the  cases  in  the  i)rcceding  section  are,  in  strictness, 
cases  of  non-execution,  M^licre  tlie  rcmainder-inau  is  compelled  to 
make  good  the  disposition,  on  tlie  ground  of  fraud  or  election  ; 
but  putting  aside  these  cases,  although  equity  will,  as  wc  have 
seen,  in  favour  of  a  purchaser,  creditor,  wife  or  child,  supply  the 
defective  execution  of  a  power,  it  is  an  immutable  rule,  that  a 

non-execution  shall  never  be  aided. (A;)     It  is  no  ground 
[  *158  ]  for  relief  that  the  party  *intended  to  exercise  his  power, 
but  was  prevented  by  sudden  death. (/) 

2.  We  have  seen,  that  where  a  man  has  a  general  power  of 
appointing  a  fund,  and  he  exercises  the  power  in  favour  of  a 
volunteer,  equity  will,  in  exclusion  of  the  appointee,  seize  upon 
the  funds  as  assets  for  the  payment  of  the  debts  of  the  person 
executing  the  power  ;  but  if  the  party  will  not  execute  the  power, 
the  Court  cannot  compel  liim  to  do  so,  nor  can  it  affect  the  fund 
subject  to  the  power  in  favour  of  the  creditors,  for  that  would  be 
against  the  nature  of  a  power  Avhich  is  left  to  the  free  will  and 

(k)  Arundell  v.  Philpot,  2  Vern.  69;  Tomkyn  v.  Sandys,  2  P.  Wms.  228,  n.;  Wilm. 
23;  Bull  v.  Vardy,  1  Ves.  jun.  272. 

(Z)  See  Pigott  v.  Penrice,  Com.  260;  Gilb.  Eq.  Rep.  138. 


ON  NON-EXECUTION.  145 

election  of  the  party  to  execute  it  or  not,  for  which  reason  equity 
will  not  say  he  shall  execute  it,  or  do  that  for  him  which  he  does 
not  thinlv  fit  to  do  himself. (y;^)  This  may  seem  rather  a  refined 
distinction,  but  it  is  well  established  ;{n)  and  the  Court  cannot 
execute  a  mere  power  where  the  donee  declined  to  do  so. 

3.  But  in  laying  down  this  broad  rule,  we  must  be  careful  to 
distinguish  between  mere  powers,  and  powers  in  the  nature  of 
trusts.  The  distinction  between  a  power  and  a  trust  is  marked 
and  obvious.  "  Powers,"  as  Lord  C.  J.  Wilmot  had  said,(o) 
"  are  never  imperative  ;"  they  leave  the  act  to  be  done  at  the  will 
of  the  party  to  wliom  they  are  given.  Trusts  are  always  impera- 
tive, and  are  obligatory  upon  the  conscience  of  the  party  intrust- 
ed." But  sometimes  trusts  and  powers  are  blended ;  a  man  may 
be  invested  with  a  trust  to  be  effected  by  the  execution  of  a  power 
given  to  him,  which  is  in  that  case  imperative  ;  and  if  he  refuse 
to  execute  it,  or  die  without  having  executed  it,  equity,  on  the 
general  rule  that  the  trust  is  the  land,(;?)  will  carry  the  trusts 
into  execution  at  the  expense  of  the  remainder-man,  and  without 
any  regard  to  the  person  in  whose  favour  it  is  to  be  executed, 
l)eing  a  mere  volunteer,  and  not  a  purchaser,  creditor, 
*wife  or  child.  This  is  the  case  where  the  poiver  is  [  *159  ] 
given  by  a  will  to  trustees  to  sell  an  estate,  and  apply 
the  money  upon  trusts.  The  power  is  in  the  nature  of  a  trust. 
The  legal  estate,  until  the  execution  of  the  power,  of  course 
descends  to  the  heir-at-law,(^)  and  if  the  power  be  defeated  at 
Uiw  by  the  death  of  the  person  to  whom  it  was  given,  the  legal 
estate  would  remain  in  the  heir-at-law  for  liis  own  benefit ;  but 
equity,  acting  upon  the  trust,  will  compel  tlie  heir  to  join  in  the 
sale  of  tlie  estate  for  the  }Hirposes  designated  by  the  testator  ;(/")(l) 

(m)  Per  Master  of  the  Rolls,  in  Toilet  v.  Toilet,  2  P.  Wms.  489. 

(/j)  Holmes  v.  Coghill,  7  Ves.  jun.  409;  12  Ves.  juu.  206;  Hixon  v.  Oliver,  13 
Vtjs.  114. 

(0)  Wilm.  23. 

(p)  Sec  Burgess  v.  Wheate,  1  Blackst.  Ifi2,  per  Lord  Mansfield. 

{q)  Warneford  v.  Thompson,  8  Ves.  jun.  513;  Hilton  v.  Kenworthy,  3  East,  553; 
and  see  Co.  Litt.  236  a. 

(r)  Garfoot  v.  Garfoot,  1  Cha.  Ca.  35;  Gwilliams  v.  Rowell,  Hard.  204;  Auby  v. 
Doyl,  I  Cha.  Ca.  180,  cited,  reported  in  1  Cha.  Rep.  89,  nom.  Amby  v.  Gower;  and 
•ce  Witchcot  v.  Souch,  1  Cha.  Rep.  97. 


(1)  Osgood  V.  Franklin,  2  Johns.  Cha.  R.  20,  S.  C.  14;  Johns.  R.  171. 

Vol.  II.  13 


146  SUGDEN   ON   POWERS. 

and  on  the  same  principlo,  tho  same  oijuiiy  is  extended  to  those 
cases,  where,  although  in  words  a  power  is  <rivcn,  it  never  arises, 
because  the  testator  has  omitted  to  appoint  some  person  to  exe- 
cute it.(s) 

4.  In  Savage  v.  Carrol, (0  by  articles  previous  to  a  mari-iagc, 
for  the  strict  settlement  of  an  estate,  it  was  agreed,  "  that  the 
settlement  should  contain  a  clause  empowering  the  husband  to 
charge  1,000/.  for  the  younger  children  of  the  marriage."  Lord 
Manners  seemed  to  be  of  opinion,  that  if  the  Court  had  been 
called  upon  to  direct  the  execution  of  a  settlement  pursuant  to 
the  articles,  the  Court  would  insert  a  clause  to  charge  the  estate 
as  a  })rovision  for  the  younger  children,  with  a  power  only  to  the 
father  to  apportion  the  shares. 

5.  The  question,  whether  a  power  is  simply  such,  or  a  power 
in  the  nature  of  a  trust,  commonly  arises  on  a  power  to  appoint 
to  a  man'§  children(w)  or  relations.     In  Brown  v.  Higgs,(.'c) 

Lord  Eldon  stated  the  principle  of  all  the  cases  on 
[  *160  ]  *this  subject  to  be,  that  if  the  power  is  a  power  which 

it  is  the  duty  of  the  party  to  execute,  made  his  duty  by 
the  requisition  of  the  will,  put  upon  him  as  such  by  the  testator, 
wlw  had  g'iven  him  an  interest  entensive  enough  to  enable  him  to 
discharge  it,  he  is  a  trustee  for  the  exercise  of  the  power,  and 
not  as  having  a  discretion  whether  he  will  exercise  it  or  not ;  and 
the  Court  adopts  the  principle  as  to  trusts,  and  will  not  permit 
his  negligence,  accident,  or  other  circumstances,  to  disappoint  the 
interests  of  those  for  whose  benefit  he  is  called  upon  to  execute 
it.(l) 

(s)  Hcyer  v.  Wordale,  2  Freem.  135,  cited;  Looton  v.  Locton,  2  Freem.  136;  Pitt 
T.  Pelhara,  1  C!ia.  Ca.  176;  1  Cha.  Rep.  149;  2  Freem.  134;  1  Lev.  304,  which  was 
against  the  trust,  but  reversed  in  Dom.  Proc ;  and  see  Carvill  v.  Carvill,  2  Cha.  Rep. 
166. 

(i)  1  Ball  &  Beatty,  265. 

(«)  See  Jones  v.  Clough,  2  Ves.  867;  and  pee  5  Ves.  jun.  856. 

(x)  8  Ves.  jun.  574.     SeeToldervy  v.  Colt,  1  You.  &  Coll.  621.  643. 

(1)  See  the  note  to  Grimke  v.  Grimke's  Ex.,  1  Desauss.  Cb.  R.  375. — Note  to  Ist 
Am.  Ed. 

See  1  Jarman  on  AVills,  33,  Perkins's  note  (1);  2  Story's  Eq.  Jur.  §  1063,  1064, 
and  notes.  4  Kent's  Com.  324,  5th.  ed.  Thompson  v.  Murray,  2  Hill's  S.  G.  Cb, 
Eep.  214. 


GIFT   BY   IMPLICATION.  147 

6.  Thus  in  Harding  v.  Glyn,(y)  Harding  devised  certain 
articles  to  his  wife,  "  but  did  desire  her,  at  or  before  death,  to 
give  the  same  unto  and  amongst  such  of  his  oiun  relations  as 
she  should  think  most  deserving  and  approve  of."  The  Master 
of  the  Rolls  held  this  to  be  a  trust  for  the  relations  in  default  of 
appointment.  He  said  that  it  operated  as  a  trust  in  the  wife,  by 
way  of  power,  of  naming  and  apportioning,  and  her  non-perform- 
ance of  the  power  should  not  make  the  devise  void,  but  the  power 
should  devolve  on  the  Court. 

7.  So  in(c)  Brown  v.  Higgs,  a  leasehold  estate  was  bequeathed 
to  A.  ;  and  after  directing  him  to  pay  certain  sums,  the  testator 
empowered  him  to  employ  the  residue  of  the  rent  "  to  such  chil- 
dren of  my  nephew  Samuel  Brown,  as  the  said  A.  shall  think  the 
most  deserving,  and  that  will  make  the  best  use  of  it,  or  to  the 
children  of  another  nepliew,  if  any  such  thei'c  were  or  should 
be  :''  and  this  was  considered,  in  default  of  appointment,  as  a 
trust  for  all  the  children  of  both  the  nephews.  Lord  Alvanley 
thought  the  fair  construction  was,  that  at  all  events  the  testator 
meant  it  to  go  to  the  children,  and  the  words  of  appointment  he 
used  only  to  give  a  power  to  A.  to  select  some  and  ex- 
clude *the  others.  He  affirmed  the  decree  on  a  re-  [  *161  ] 
hearing,(a)  and  Lord  Eldon  affirmed  it  upon  an  ap- 
peal,(6)  and  it  was  ultimately  confirmed  in  the  House  of  Lords. 

8.  Again,  in  Forbes  v.  Ball,(c)  a  gift  of  500/.  to  the  testator's 
wife,  and  it  was  his  will  and  desire  that  she  might  dispose  of  the 
same  amongst  her  relations,  as  she  by  will  might  think  proper, 
with  a  gift  of  the  residue  of  his  estate  to  her  for  life,  and  then  to 
others,  were  held  as  to  the  oOO/.  to  be  a  trust  for  the  wife's  rela- 
tions, subject  to  her  appointment. 

9.  In  all  these  cases,  although  in  terms  no  obligation  was 
imposed  on  the  donee  to  exercise  the   power,  and  although  in 

(y)  1  Atk.  4G9;  S.  C.  stated  from  the  Register's  book,  5  Ves.  jun.  501;  8  Ves. 
jun.  571,  from  Mr.  .loddrell's  note;  Birch  v.  Wade,  3  Ves.  &  Bea.  1U8. 

(2)  Brown  v.  Higgs,  4  Ves.  jun.  708;  Burrough  v.  Philcox,  5  M^l.  &  Cra.  73. 

(«)  5  Ves.  jun.  4'Jo. 

(i)  8  Vc9.  jun.  561 ;  and  sec  Paul  v.  Compton,  ibid.  375;  Cruwys  v.  Colman,  9 
Ve.**.  jun.  31',i;  and  see  Madoc  v.  Jacksun,  '2  Bro.  C.  C.  588,  and  4  Ves.  jun.  792,  n. 
(a);  Davy  v.  Hooper,  2  Vern.  665;  1  Bro.  P.  C.  351;  Attorney-general  v.  Bradley,  1 
Eden,  482;  Beevor  v.  Partridge,  11  Sim.  229. 

(c)  3  Mer.  437. 


148  SUGDEN    ON    POWERS. 

some  ho  had  a  discretion  to  select  from  the  class  the  individual? 
to  take,  yet  as  the  pi-operty  was  given  to  him  generally  with  such 
a  power,  and  his  own  interest  was  conhncd  to  his  life  by  plain 
construction,  an  intention  was  collected  tliat  tlie  interest  beyond 
his  own  life  was  to  vest  in  the  objects,  and  that  he  having  a  suffi- 
cient estate  for  that  i)urpose,  and  a  power,  was  bound  to  give 
efiect  to  that  intention  ;  and  his  neglect  to  exercise  his  discretion, 
or  to  execute  his  power  amongst  the  objects — where  none  was  to 
be  excluded — was  not  permitted  to  operate  ts  the  detriment  of 
his  cesluis  que  trust ;  for  such  the  objects  of  a  power  in  the 
nature  of  a  trust  really  are,  although  the  person  to  whom  the 
power  is  given  has  more  than  the  authority  of  a  common  trustee. 


10.  There  is  a  class  of  cases  which  it  is  difficult  to  distinguish, 
whei'e  the  power  is  not  treated  as  in  the  nature  of  a  trust,  nor  i^ 
there  an  express  gift'  to  the  olyccts  ;  but  the  gift  is  so  framed  as 

to  contain  in  itself  both  a  power,  and  a  gift  bjj  impli- 
[  *162  ]  cation  *to  the  objects  of  the  power  in  default  of  ap- 
pointment.    But  this  doctrine  has  not  been  established 
without  a  struggle. 

11.  In  The  Duke  of  Marlborough  v.  Godolphin,(^Z)  A.  devised 
a  legacy  of  30,000/.  to  his  wife  for  life,  "  and  after  her  decease 
to  be  divided  and  distributed  to  and  amongst  such  of  his  children, 
and  in  such  manner  and  proportion,  as  she  by  any  deed,  &c.  should 
direct  and  appoint ;  and  for  no  other  purpose  whatever."  Lord 
Hardwicke  held  it  to  be  a  mere  power,  and  not  a  trust  for  the 
children  in  default  of  appointment,(e)  He  appears  to  have  drawn 
a  distinction  between  a  bequest  "  amongst  my  children  as  A.  shall 
appoint,"  which  he  considered  as  a  trust,  and  a  bequest  amongst 
such  of  his  children,  &c.,  which  he  held  to  be  a  mere  power.  He 
considered  the  power  in  the  principal  case  as  given  to  secure  her 
the  respect  of  her  children.  He  observed,  the  next  morning 
after  deciding  the  case,  that  he  had  forgot  to  take  notice  of  the 
cases  cited  for  the  defendants,  but  that  one  answer  to  them  all 

(rf)  Duke  of  Marlborough  V.  Godolpliin,  2  Ves.  01 ;  5  Vcs,  jun.  500,  stated  from 
Reg.  Lib.;  S.  C.  MS. 

(c)  And  sec  Dull  v.  Viirdy,  1  Ves.  jun.  270;  Target  v.  Gaunt,  1  P.  Wms.  432: 
Burrough  v.  Philcox,  5  M^'l.  &  Cra.  73. 


I 


POWERS   IN   NATURE   OP   TRUSTS.  149 

was,  that  they  were  all  cases  where  the  bequest  araounted  to  a 
legacy  to  all  the  children,  as  where  it  was  "  to  be  divided  among 
all  my  children,''  it  amounted  thereto,  being  still  legatory  words, 
whether  it  was  by  the  word  give  or  devise  ;  and  the  person  would 
be  obliged  by  the'  Court  to  give  something  to  every  one  of  the 
children ;  consequently  only  the  proportions  were  entrusted  to 
the  appointor  ;  the   objects  were  fixed. 

12.  In  Brown  v.  Higgs,  upon  the  appeal.  Lord  Eldon  observed 
that  The  Duke  of  Marlborough  v.  Lord  Godolphin  was  certainly 
very  difficult  to  reconcile  with  Harding  v.  Glyn,  or  with  the  case 
before  him.  But  the  question  w^as  not  whether  one  case  was  to 
be  reconciled  with  others,  but  whether  ail  the  cases 

had  gone  upon  a  principle  which  professed  *to  save  [  *163  ] 
whole  Harding  v.  Glyn.  Lord  Hardwicke,  in  The 
Duke  of  Marlborough  v.  Lord  Godolphin,  did  not  say  that  where 
there  is  a  power,  and  it  is  made  the  duty  of  the  })arty  to  execute 
it,  and  he  would  not  execute  it,  in  such  a  case  this  Court  would 
not  act ;  but  he  collected  from  the  scope  and  object  of  the  dis- 
position in  that  case,  taken  altogether,  the  opinion,  that  it  was  a 
case  in  which  the  person  having  a  power  to  dispose  of  the  sum  of 
30,000/.,  had  a  mere  power,  not  clothed  with  any  duty  requiring 
her  to  execute  it ;  and  therefore  as  to  what  was  not  disposed  of 
the  Court  could  not  interfere. (/)  In  another  passage  he  said 
that  the  case  of  Harding  v.  Glyn  could  not  be  got  rid  of  by  say- 
ing that  it  was  a  singular  case,  and  that  it  was  difficult  to  recon- 
cile all  subsequent  cases  with  it ;  for  that  case  had  been  treated 
as  a  clear  authority,  probably  for  the  whole,  certainly  by  his  own 
experience,  for  a  very  considerable  part  of  the  time  elapsed  since 
that  judgment  was  pronounced. 

13.  There  is  no  doubt  a  clear  distinction  between  Harding  v, 
Glyn,  and  The  Duke  of  Marlborough  and  Godolphin,  as  in  the 
former  case  the  interest  was  wholly  vested  in  the  donee  of  the 
power,  and  in  the  latter  she  was  expressly  made  tenant  for  life ; 
but  in  botli  the  donee  had  a  power  of  selection,  and  the  terms  of 
the  power  in  the  latter  case  manifested  an  intention  that  the 
objects  should  not  be  disappointed :  To  his  wife  for  life,  and  after 
her  decease  to  be  divided  and  distributed  amongst  such  of  his 

(/)  8  Ves.  jun.  569,  570. 

13' 


150  SUGDEN   ON   POWERS. 

children  as  she  should  appoint.  Now,  as  tlie  right  to  exclude 
some  does  not  prevent  the  class  from  taking-  in  default  of  appoint- 
ment, it  should  seem  that  if  a  case  in  the  very  terms  of  the  Duke 
of  Marlhorough  and  (jodol])hin  were  now  to  occur,  it  would  be 
decided  that  tiie  children  took  as  tenants  in  common  in  default  of 
uppointment,  either  l)y  implication,  which  seems  the  true  construc- 
tion, or  because  the  power  was  coupled  with  a  trust,  (g*) 
;[  *104  ]  ^14.  In  Crossling  v.  Crossling,(/i)  the  devise  was  of 
a  freehold  estate  to  the  wife  for  her  life,  "and  she  shall 
dispose  of  the  same  amongst  my  children  by  her,  at  her  decease, 
as  she  shall  think  proper."  The  wife  did  not  exercise  the  power, 
and  upon  an  ejectment  by  the  heir  the  children  filed  their  bill  for 
an  injmiction.  But  the  Court  of  Exchequer  said  that  the  cases 
referred  to  were  cases  in  whicli  a  fund  was  by  the  will  given 
absolutely.)  but  after  such  bequest  there  followed  words  of  desire 
or  recommendation  in  favour  of  certain  persons  after  the  death  of 
the  first  legatee :  there  the  Court  had  holden  the  first  legatee  to 
be  a  trustee  for  the  persons  so  recommended,  and  had  given  the 
fund  accordingly  after  his  death ;  but  in  this  case  there  was  an 
express  devise  of  a  real  estate  to  the  wife  for  her  life^  with  a 
power  for  her  to  dispose  of  it  amongst  the  children,  which  power 
she  had  never  executed.  The  ccnsequence  was,  that  the  estate 
descended  after  her  death  to  the  heir-at-law,  and  there  was  no 
instance  of  the  Court  declaring  an  heir-at-law  (who  claimed  dehors 
the  will)  to  be  a  trustee  for  the  objects  of  such  a  power.  (1) 

15.  In  this  case  an  estate  for  life  only  was  given  to  the  wife, 
and  therefore  she  was  entrusted  with  no  estate,  nor  was  there  a 
gift  over  from  which  an  intent  could  be  collected.  But  still  the 
terms  of  the  devise  appear  to  denote  an  intention  that  the  wife 
should  exercise  the  power;  '•'■and  she  shall  dispose  of  the  same,''^ 
and  the  whole  class  was  to  take.  It  might  properly  have  been 
considered  a  power  which  it  was  imperative  on  her  to  execute. 

16.  In  the  before-mentioned  case  of  Brown  v.  Higgs,  one  estate 

{g)  See  5  Myl.  &  Cra.  90.  95. 
(A)  2  Cox,  396. 

(1)  Bull  V.  Bull,  3  Day  R.  384.  Knight  v.  Yarboro,  Gilmer  (Va.)  Cas.  27.  Den 
T.  Crawford,  3  Halst.  R.  102.  Mitchell  v.  Johnson,  6  Leigh's  R.  461.  Hudson  v. 
fladaon,  6  Munf.  R.  856. 


I 


GIFT  BY   IMPLICATION.  151 

was  devised  "  to  one  of  the  sons  of  my  nephew  Samuel  Brown,  as 
he  shall  direct  by  a  conveyance  in  his  lifetime  or  by  his  will.'" 
This  point  did  not  call  for  a  decision,  but  Lord  Alvanley  seemed 
to  think  it  a  mere  power.  Lord  Eldon's  opinion  cannot  be  easily 
ascertained.  But  unless  every  power  of  this  nature  is 
to  be  converted  into  a  *trust,  or  which  is  the  same  thing,  [  *l(3o  ] 
a  power  the  donee  is  bound  to  execute,  this  clearly  was 
a  simple  power.  A  power  to  give  to  such  as  a  donee  may  select 
of  a  class,  may  be  considered  as  including  the  whole  class,  for, 
although  any  may  be  selected,  yet  the  whole  may  be  objects  of 
the  power ;  whereas  a  power  to  appoint  to  such  one  of  a  class  as 
a  person  shall  name,  authorizes  a  gift  to  one  only  of  the  class  ;  no 
larger  number,  much  less  the  whole  class,  can  be  made  objects  of 
the  power.  If,  therefore,  the  •  power  is  in  the  nature  of  a  trust, 
or  there  is  a  gift  in  the  poAver  itself  by  implication,  it  can  only  be 
commensurate  with  the  power,  and  therefore  for  one  only  of  the 
objects.  Which  one  would  be  the  proper  cestui  que  trusty  or  the 
person  in  whose  favour  the  implied  gift  was  made  ? 

17.  We  may  now  state  the  cases  in  which  the  objects  of  a 
power  have  been  held  to  take  in  default  of  appointment,  although 
the  donee  was  confined  to  a  life  estate  and  there  was  no  direct 
devise  to  the  objects. 

18.  In  Mason  v.  Limbery,(i)  a  bequest  to  A.  for  life,  whom 
the  testator  "  desired  at  his  death  to  give  it  amongst  his  children, 
and  the  children  of  his  said  daughter,  as  he  should  think  fit,"  was 
holdcn  by  Lord  Talbot  to  be  a  devise  to  the  children  in  default 
of  appointment,  and  the  children  were  accordingly  decreed  to  be 
entitled  to  the  fund,  although  A.  died  in  the  lifetime  of  the  testa- 
tor. And  there  are  other  cases  to  the  same  efiect,(^')  some  of 
which  we  shall  have  occasion  to  consider  when  we  treat  of  a 
power  to  ai)point  to  relations. (/) 

lU.  So  in  Kemp  v.  Kemp,(m)   a  gift  of  the  residue  to  the 

(i)  T.  Term,  1734,  MS. 

(fc)  Davy  V.  Hooper,  2  Vera.  665;  6  Bro.  P.  C.  51;  Maddison  t.  Andrew,  1  Ves. 
57;  Hockley  v.  Mawby,  1  Vcs.  jun.  143;  Morgan  v.  Surman,  1  Taunt.  289;  Witts  v. 
Boddington,  3  Bro.  C.  C.  95;  5  Ves.  jun.  503,  stated  from  Lib,  Reg.;  Reade  v.  Reade, 
5  Ves.  jun.  744;  Longmore  v.  Broom,  7  Vcs.  jun.  124. 

(/)  Vide  chap.  14. 

(m)  5  Vcs.  jun.  849.  See  Fowler  v.  Hunter,  2  Yo.  &  Jerr.  500;  Brown  t.  Pocock, 
«  Sim.  257. 


152  BUGDEN  ON   POWERS. 

[  'IGG  ]  *tcstator's  cousin  for  life,  and  tlicn  to  be  dit^posed  of 
amougst  her  child roii  as  she  should  thiuk  proper,  was 
considered  to  be  a  gift  of  the  luud  to  the  childi'cu  in  default  of 
appointnicut,  and  an  invalid  appointment  was  treated  as  no 
apjiointmc-it. 

20.  There  is  more  difficulty  where,  as  in  Lougmorc  v.  13room,(») 
the  person  named  has  a  discretion,  and  can  prefer  even  one  class 
to  another ;  and  yet  even  in  such  a  case,  if  an  intention  can  be 
collected  to  give  the  fund  to  the  objects,  they  will  take  it  though 
there  is  no  appointment,  (o) 

21.  In  Jones  v.  Toiin,(/;)  in  which  Longmorc  v.  Broom  wavS 
not  cited,  a  sum  of  money  Avas  bequeathed  to  trustees  for  the  tes- 
tator's daughter  for  life,  and  upon  her  decease  he  gave  the  same 
to  the  children,  or  their  descendants,  of  other  persons,  in  such 
proportions  to  each  as  his  daughter  might  by  her  will  or  any  other 
written  declaration  during  her  lifetime  direct.  The  daughter  did 
not  exercise  the  power,  and  it  was  held  that  the  descendants  were 
mentioned  merely  as  substitutes  for  the  children.  There  was  a 
direct  gift  with  a  power  of  selection. 

22.  In  Grierson  v.  Kirsopp,(^)  the  testator  gave  by  his  will  to 
his  wife  during  her  widowhood,  for  the  benefit  and  advantage  of 
his  children,  either  to  hold  or  dispose  of  his  estate  A.,  as  she 
might  find  most  convenient,  but  if  she  desired  to  dispose  of  the 
same,  it  was  to  be  managed  by  trustees.  By  a  codicil  he  em- 
powered his  wife,  with  the  assistance  of  the  trustees  named  in  the 
will,  to  sell  all  his  estates,  and  the  money  thence  arising,  with 
his  personal  estate,  "  she  shall  and  may  divide  and  proportion 
amongst  my  children  as  she  shall  think  fit  and  proper,  or  as  she 
shall  direct  or  order"  by  her  will.  The  widow  did  not  sell,  and 
survived  all  her  children  and  made  no  valid  appointment.  It  was 
held  that  she  took  a  life  interest,  with  a  power  to  sell  the  real 

estate,  which  was  in  the  nature  of  a  trust,  and  that, 
[  *167  ]  "subject  to  such  appointment  as 'the  widow  might  have 

made,  the  children  were  entitled  in  equal  shares  as  pro- 
perty converted  into  personalty. 

(n)  7  Ves.  jun.  124, 
(o)  Ibid, 
(p)  6  Sim.  255. 
(})  2  Kee.  653. 


GIFT   BY   IMPLICATION.  153 

23.  Sometimes  the  gift  to  the  objects  of  the  power  is  implied 
from  tlie  event  upon  which  the  property  is  given  over  to  third 
persons.  Tluis,  in  Witts  v.  Boddington,(r)  the  gift  by  will  was 
to  the  wife  for  life,  of  certain  articles  of  personalty,  with  power 
for  her  by  her  will  or  otherwise  to  give  and  bequeath  the  same 
unto  or  amongst  some  or  one  of  the  child  or  children  of  his 
daughter,  in  such  manner  and  proportions  as  his  wife  should 
think  proper  ;  hut  in  case  no  such  children  of  his  davg-hter  should 
be  alive  at  the  time  of  his  ivife's  decease,  then  he  desired  or  di- 
rected her  to  give  or  leave  the  same  unto  his  own  relations.  The 
gift  over  was  considered  as  decisive  of  the  intention,  that  if  there 
were  children  they  should  have  the  property,  and  accordingly  no 
appointment  having  been  made,  they  were  decreed  to  take  it 
equally. 

24.  Where  the  olijects  of  the  power  take  by  implication  from 
the  words  of  the  power  itself,  those  only  can  ti3ke  in  default  of 
appointment  who  were  capable  of  taking  by  appointment,  (s) 

25.  But  where  there  is  a  gift  over  in  default  of  appointment  to 
the  objects  of  the  power  or  to  other  persons,  of  course  the  words 
of  the  power  cannot  operate  to  vest  any  estate  in  the  objects  of  it 
by  implication,  if  there  be  no  appointment. (^) 

2G.  But  a  gift  over  to  prevent  a  lapse,  to  the  objects  of  the 
power,  which  does  not  take  place,  will  not  prevent  the  implied 
gift  arising  from  the  power  itself.  This  was  decided  in  Kennedy 
v.  Kingston (//)  where  the  gift  was  of  a  sum  of  money 
•to  one  for  life,  and  at  her  decease  to  divide  it  in  por-  [  *168  ] 
tions  as  she  shall  choose  to  her  children,  and  in  case  she 
died  l)cfore  him,  he  left  the  sum  to  be  equally  divided  amongst 
her  children.  It  was  held,  that  the  power  embraced  only  chil- 
tlren  living  at  the  donee's  death  :  Init  that  it  must  be  understood 
as  tacitly  including  a  provision  for  an  equal  division  of  the  fund 
amongst  the  objects,  in  the  event  of  no  ap])ointment  being  made. 
Two  who  survived  were  therefore  the  only  persons  to  take  ;  they 
only  could  take  under  an  appointment,  and  if  no  appointment 

(r)  3  Bro.  C.  C.  95;  5  Ves.  jan.  503. 

(s)  Wnlsh  V.  Wallinger,  2  Kuss.  &  Myl.  73.     See  Woodcock  v.  Rcnncck,  4  Bcav. 
lUO. 

(0  Jenkins  v   Qiiincliant,  Pritchard  v.  Quinchant,  0  Ves.  jun.  50G,  n.;  Ambl.  14G. 
(u)  2  Jac.  &  Walk.  43!. 


154  SUGDEN   ON    POWERS. 

were  matlc  tliey  would  take  by  necessary  implication.  The  ques- 
tion, the  Master  of  the  Rolls  said,  was,  upon  the  clause  in  case  of 
the  lc}2;atee  for  life  dying  before  the  testatrix,  the  sum  was  to  be 
equally  divided  amontrst  the  children  ;  and  it  was  said  that  the 
mention  of  one  event  upon  which  they  were  to  take  in  default  of 
appointment,  was  an  exclusion  of  any  other  ;  and  tiiat  it  was, 
therefore,  not  meant  to  go  to  them  excc])t  upon  an  event  that  had 
not  happened.  But  this  did  not  appear  to  him  to  be  a  necessary 
consequence.  She  might  die  in  the  lifetime  of  the  testatrix  ; 
she  niiglit  survive  and  make  a  complete  ajti^jintmcnt,  or  she  might 
survive  and  make  an  incomplete  appointment.  There  was  no 
provision  in  express  terms  for  the  event  which  had  actually  ha}> 
pened,  of  her  surviving  and  making  an  incomplete  appointment, 
or  for  her  making  no  appointment  at  all ;  but  that  is  quite  con- 
sistent with  the  express  provision  for  her  dying  before  the  testa- 
trix, as  in  that  event  the  fund  was  not  disposed  of  by  the  previous 
part  of  the  will.  It  did  not,  therefore,  seem  to  him  that  this  pro- 
vision annihilated  the  implication  arising  from  the  previous  part 
of  the  sentence,  which  he  considered  as  embracing  a  power  to 
appoint  to  the  children  who  should  survive,  with  a  gift  to  them  in 
default  of  appointment.  The  two  survivors,  therefore,  were  enti- 
tled alone  to  the  whole  sum. 


27.  There  is  still  another  class  of  cases  where  the 
[  *1G9  ]  property  *is  actually  given  to  the  objects,  but  the  shares 
or  interests  are  to  be  apportioned  by  a  third  person  ; 
and  there  of  course  the  objects  will  take  altliough  the  power  be 
not  executed,  but  this  is  by  force  of  the  original  gift ;  and  in  some 
of  these  cases  the  intention  is  still  more  strongly  marked  by  the 
gift  over,  which  is  not  in  default  of  appointment,  but  for  default 
of  the  objects.  • 

28.  Thus  Avhere  a  marriage  settlement  of  some  annuities  was 
made  by  the  the  husband,  in  trust  for  himself  for  life,  remainder 
to  his  wife  for  life,  remainder  to  his  children,  in  such  manner  as 
he  should  appoint,  o«(/  if  no  children^  to  his  executors,  administra- 
tors and  assigns.  The  fatlier  died  without  having  made  any  ap- 
pointment, and  there  was  an  only  child  of  the  marriage.     Lord 


PROPERTY,   OR  POWER,   OR   TRUST.  155 

Hardwickc  was  of  opinion  that  the  child  was  entitled  under  the 
settlement  to  the  annuities  as  an  interest  vested  in  her,  and  that 
the  father  had  only  a  power  reserved  to  him  of  making  such  dis- 
position thereof  amongst  his  children  as  he  thought  prop^,  and 
there  being  only  one  child,  that  she  was  entitled  to  the  whole. (3;) 

29.  In  Hockley  v.  Mawbey,(y/)  a  devise  of  freehold  and  lease- 
hold estates  to  the  testator's  son,  and  his  issue  lawfully  begotten, 
or  to  be  begotten,  to  be  divided  amongst  them  as  he  should  think 
fit,  and  in  case  he  should  die  ivithout  issue,  over,  was  held  as  to 
the  leaseholds,  to  be  a  gift  to  the  son  for  life,  and  after  that  to 
his  issue  in  such  distributive  shares  as  he  should  appoint.  Lord 
Thurlow  observed,  that  it  had  been  said  that  this  might  be  inter- 
preted to  be  a  gift  to  the  son  in  tail,  with  a  power  annexed  to 
raise  a  future  use  upon  it  of  the  description  mentioned.  As  to 
that  he  apprehended  that  in  case  there  had  been  children  of  the 
son,  it  was  not  intended  to  be  left  in  his  power  to  determine  whe- 
ther he  should  or  should  not  consider  it  as  his  own,  and  raise  a 
future  use  if  he  pleased  ;  but  the  disposition  gave  an  interest  to 
his  children,  and  a  title  to  insist  upon  an  estate  in  the  premises  so 
given  at  all  events,  and  then  the  son  has  no  authority 

*but  as  to  the  proportions  in  which  they  were   to  take,  [  *170  ] 
but  not  to  choose  whether  anything  should  be  given  to 
them  or  not. 

30.  .So  upon  a  devise  to  the  wife  for  life,  and  after  her  decease 
unto  her  children,  to  be  parted  among  them  as  she  should  appoint, 
Mansfield,  C.  J.,  thought  that  all  the  children  would  have  taken 
if  there  had  been  no  appointment.(;r) 

81.  So  a  devise  unto  and  among  his  three  children  and  their 
lawful  issue,  in  such  jiroportions,  &c.  as  his  wife  should  appoint, 
without  any  gift  over  in  default  of  appointment,  was  held  to  give 
the  children  estates  tail.(«) 

32.  In  Casterton  v.  Sut]ierland,(&)  an  estate  was  devised  to  the 
testator's  wife  for  lifc^and  after  her  death  unto  and  amongst  all 
and  every  their  children,  in  such  msumer  and  in  such  proportions 

(i)  Bellasis  v.  Uthwatt,  1  Atk.  426. 
(y)  1  Ves.  jun.  143. 

(3)  Morgan  v.  Surman,  1  Taunt.  289. 
(n)  Martin  v.  Swannell,  2  Beav.  249. 

(4)  9  Ves.  jun.  445. 


166  SUGDEN    ON   POWERS. 

as  she  should  ap])oint.  He  authorized  her  to  sell  Ihc  estate  and 
invest  the  money,  and  receive  the  interest  for  her  lil'e,  and  after 
her  death  he  directed  l)oth  j>rincii)al  and  interest  to  be  paid  to 
and  anion^  their  oliildrcn  in  such  ])roporlions  as  aforesaid.  All 
tlie  chiklren  who  survived  the  testator  died  in  their  motlicr's  life- 
time, and  she  died  without  liaving  made  any  appointment ;  and 
Sir  W.  Grant  was  clearly  of  opinion  that  this  was  a  tenancy  in 
common  among-  the  children,  subject  to  the  power  of  api)ointmcnt, 
and  that  upon  the  whole  of  the  devise  they  took  the  fee. 

33.  In  Bushell  v.  ]>ushell,(6-)  by  an  inaccurate  settlement 
upon  a  marriage,  leascliolds  for  lives  were  settled  to  the  use  of  the 
husband  for  life,  with  remainder  to  the  issue  to  be  begotten  by  him 
on  the  wife,  in  such  shares  and  proportions  as  they  should  appoint. 
Lord  Rcdesdalo  said,  that  the  whole  of  the  instrument  was  in- 
correct ;  it  seems  to  have  been  considered  only  as 
[  *1T1  ]  notes  for  a  future  settlement ;  the  *children  were  in- 
tended to  take  not  by  appointment  merely,  but  also  in 
default  of  appointment,  tliough  no  such  provision  was  inserted. 
The  deed  would  be  rectified  accordingly,  and  the  consequence 
would  i>c  that,  subject  to  the  power  of  appointment,  the  cliildren 
would  be  tenants  in  common. 


34.  In  the  cases  liithcrto  discussed  poioers  were  actually 
created,  and  the  question  was,  whether  they  were  strictly  such, 
or  in  the  natnre  of  trusts,(l)  or  whether  they  contained,  expressly 
or  by  implication,  a  gift  to  the  objects.  But  there  are  cases  yet 
to  be  considered  in  wliich  tlie  question  is,  whether  any  power, 
properly  so  called,  is  created,  and  the  contest  is  between  an  abso- 
lute right  of  property  in  the  donee,  and  a  power  ia  the  nature  of 
a  trust  for  the  benefit  of  certain  objects. 

3o.  In  Ilarland  v.  Trigg,(r/)  leaseholds  for  lives  were  given  to 
the  uses  of  a  previous  devise  of  real  estates, ''  all  other  leaseholds 

(c)  1  Scho.  &  Lef.  00;  aud  see  Madoc  v.  Jackson,  2  Bro.  C.  C.  588;  4  Ves.  jun. 
792;  1  Scho.  &  Lef.  293. 

(d)  1  Bro.  C.  C.  142;  Macey  v.  Shurmer,  1  Atk.  889. 


(1)  See  Wells  v.  Sloyer,  3  Penn.  L.  J.  203.     See  especially  p.  210,  211. 


PROPERTY,   OR   POWER,   OR   TRUST.  157 

to  John  Harland  forever,  hoping  lie  will  continue  them  in  the 
family."  Lord  ThurloW  held  that  the  objects  must  be  distinct. 
Where  there  is  a  choice,  it  must  be  in  the  power  of  the  devisee  to 
dispose  of  it  either  way.  The  words  did  not  clearly  demonstrate 
an  object,  and  he  held  it  not  to  be  a  trust. 

36.  In  Wright  v.  Atkyns,(e)  the  devise  was  of  his  freehold, 
copyhold  and  leasehold  estates  unto  his  mother,  and  her  heirs 
forever,  in  the  fullest  confidence  that  after  her  death  she  would 
devise  the  property  to  his  family.  The  words  in  the  fullest  confi- 
dence were  held  sufficient  to  create  a  trust,  if  there  was  no  un- 
certainty in  the  object,  and  it  was  decreed  that  the  mother  was 
tenant  for  life,  with  remainder  in  trust  for  the  devisor's 

heir  as  persona  dcsig-nata,  and  as  tenant  for  *life  she  [  *172  ] 
was  restrained  from  cutting  timber. (/)  Upon  an  ap- 
peal to  the  House  of  Lords,  after  elaborate  arguments,  it  was 
held  that  she  was  not  a  bare  tenant  for  life,  and  the  case  was 
remitted  to  the  Court  of  Chancery.  Lord  Eldon  then  gave  her 
liberty  to  cut  timber  in  an  husbandlikc  manner,  as  tenant  in  fee, 
giving  security  for  the  value  or  bringing  the  value  into  Court. 
Upon  a  second  appeal  to  the  House  of  Lords  that  order  was 
reversed,  and  she  was  declared  entitled  to  cut  the  timber  as  tenant 
in  fee,  leaving  the  question  open  as  to  the  person  entitled  to  the 
pro])crty  at  her  death. (g-)  And  it  was  declared  that,  according 
to  the  true  construction  of  the  will,  the  intention  of  the  testator 
must  be  taken  to  have  been  to  give  to  the  motlier  a  right  to  cut 
the  timber  for  her  own  use.  The  principle  of  the  decision  was, 
that  tlie  actual  devise  to  the  mother  should  not  be  cut  down 
further  than  was  necessary  to  give  eficct  to  the  ultimate  trust,  if 
one  was  declared. 

37.  In  Heneage  v.  Lord  Andover,(/i)  which  was  heard  in  the 
House  of  Lords(2)  under  the  name  of  Meredith  v.  Heneage,  upon 

(c)  17  Ves.  jun.  255;  10  Ves.  jun.  299;  Coop.  Ill ;  Grant  v.  Lyman,  4  Russ.  292; 
Bland  v.  Blind,  2  Cox,  349;  Lawless  v.  Sliaw,  Rep.  temp.  Sugden,  154;  Hoy  v. 
Martin,  G  Sim.  568;  Wood  v.  Cox,  1  Kee.  317. 

(/)   1  Vc9.  &  Bea.  315. 

(ir)  Cases  D.  P.,  7  July  1823,  MS.  The  writer  was  one  of  the  counsel  for  the  ap- 
pell.int. 

(A)   10  Price,  230. 

(I)  10  Price,  306;  1  Sim.  542. 

Vol.  H.  14 


158  SUGDEN   ON   POWERS. 

conilicting  declarations,  it  was  held  that  no  trust  was  created,  as 
the  testator  declared  that  he  had  given  to  his  wife  his  estate  un- 
fettered and  unlimited,  although  he  added,  in  full  confidence,  and 
with  the  firmest  persuasion  that  in  her  future  disposition  and  dis- 
tribution thereof  she  would  distinguish  the  heirs  of  his  late  father, 
by  devising  tlie  whole  of  In's  estate,  together  and  entire,  to  such 
of  his  father's  heirs  as  she  mi<ilit  think  best  deserved  her  prefer- 
ence. 

38.  In  Sale  v.  Moore, (/.•)  the  testator  gave  to  his  wife  all  his 
worldly   substance,  upon  trust  to  pay  his  debts  and  funeral  ex- 
penses, a  legacy  to  a  charity,  and  an  annuity  to  one  of 

[  "ITS  ]  his  next  of  kin,  adding,  that  his  brother  being  *in 
affluent  circumstances,  and  his  eldest  sister  being  al- 
ready provided  for  by  him,  would,  he  trusted,  be  considered  by 
them  as  a  sufficient  reason  for  his  not  leaving  them  any  thing  in 
his  will,  as  he  could  not  do  it  without  taking  from  his  wife's  pro- 
perty, who  was  more  in  need  of  it.  The  remainder  of  what  he 
died  possessed  of  he  left  to  his  wife,  recommending  her,  and  hot 
doubting,  as  she  had  no  relations  of  her  own  family,  but  that  she 
would  consider  his  near  relations  shoidd  she  survive  him,  as  he 
should  consider  them  himself  in  case  he  should  survive  her:  it 
was  held  that  no  trust  was  created. (/) 

39.  These  cases  show  the  disinclination  of  the  Courts  to  create 
a  power,  properly  so  called,  upon  words  of  recommendation,  where 
the  absolute  property  is  given  to  the  person  to  whom  the  recom- 
mendation is  addressed,  although  clearly  if  a  sufficient  intention 
appears  to  create  a  power,  or  a  trust  through  the  medium  of  a 
power,  words  of  recommendation  will  be  sufficient  to  raise  it.(l) 

(fc)  1  Sim.  534. 

(i)  And  see  Benson  v.  Wliittam,  5  Sim.  22;  Lechmere  v.  Lavie,  2  Myl.  &  Kee.  197. 

(1)  But  few  cases  on  this  subject  have  occurred  in  the  United  States.  In  Erickson 
y.  Willaril,  1  Is.  Hamp.  217,  E.  F.  devised  all  his  estate  to  J.  W.  and  appointed  him 
his  executor.  In  the  will  was  this  clause.  I  desire  that  the  said  J.  W.  should,  at  his 
discretion  appropriate  a  part  of  the  income  of  my  estate  aforesaid,  not  exceeding 
060  a  year,  to  the  support  of  my  widow  M.  E.  It  was  held  that  this  clause,  with 
other  expressions,  rendered  the  devise  to  J.  W.  a  trust  to  the  above  amount,  which  a 
court  would  enforce.  In  Collins  v.  Carlisle,  7  B.  Monroe,  14,  the  words  "  to  be 
disposed  of  and  divided  among  my  children,"  were  held  to  control  the  prior  devise  to 
hia  wife,  and  create  a  trust  for  the  children.    A  devise  to  two  executors  of  the  residue 


DISCRETIONARY  POWER  NOT  EXECUTED   BY   COURT.  159 

40.  As  we  shall  hereafter  see,  where  a  power  is  given  to  one 
to  appoint  amongst  a  class  of  persons  as  relations,  or  to  select  any 

of  a  testator's  estate,  "  with  full  coafiJence  that  they  will  dispose  of  saoh  residue 
among  our  brothers  and  sisters  and  their  children,  as  they  shall  judge  shall  be  most 
in  need  of  the  same;  this  is  to  be  done  according  to  the  best  of  their  discretion,'* 
creates  a  trust  in  favor  of  the  needy  brothers,  &c,  which,  on  the  death  of  the 
trustees  without  exercising  it,  devolves  on  the  court.  Bull  v.  Bull,  8  Conn.  47.  la 
Luca.s  V.  Lochart,  10  Sm.  &  M.  4(56,  a  husband  by  his  will  gave  to  his  wife  the  entire 
profit  of  all  his  estate  during  her  life,  "  entrusting  to  her  the  educUioa  and  mainte- 
nance of  his  children,  and  provided  also  for  the  education  and  maintenance  of  the 
children  out  of  the  profits  "  of  the  estate,  and  it  was  held  that  the  wife  took  the 
estate,  coupled  with  the  trust  for  the  education  and  support  of  the  children.  This 
doctrine  of  the  creation  of  trusts  by  precatory  words  was  a  good  deal  discussed  Iq 
Virginia,  in  Harrison  v.  Harrison,  2  Gratt.  1.  There,  a  testator  had  made  his  will  ia 
these  words  :  "  In  the  utmost  confilence  of  my  wife,  I  leave  to  her  all  my  worldly 
goods,  to  sell  or  keep  for  distribution  amongst  our  dear  chiMren  as  she  miy  think 
proper.  My  whole  estate,  real  and  personal,  is  lefc  in  fee  simple  to  her,  only  re- 
questing her  to  make  an  equal  distribution  amongst  our  heirs,  and  desiring  her  to  do 
for  some  of  my  faithful  servants,  whatever  she  may  think  will  most  conduce  to  their 
welfare,  without  regard  to  the  interest  of  my  heirs.  Of  course  I  wish  first  of  all  tliat 
all  my  debts  shall  be  paid."  The  court  of  appeals.  Judge  Brooke  dissenting,  held, 
1.  That  the  widow  was  invested,  subject  to  the  payment  of  the  testator's  debts,  with 
the  legal  title  to  the  whole  estite,  real  and  personal;  taking  the  beneficial  interest  ia 
the  estate  for  her  life;  2.  That  the  children  of  the  marriage  had  a  vested  remainder 
in  fee  in  the  estate,  to  commence  in  possession  at  the  widov7's  death,  or  earlier,  at  her 
election;  3.  That  the  widow  might  make  advancements  to  the  children  at  her  discre- 
tion, so  that  they  all  ultimately  received  an  equal  share  of  the  estate;  4.  That  she 
might  employ  a  re^isonable  portion  of  the  estate  for  the  benefit  of  the  slaves;  5.  And 
that  she  had  power  to  sell  all  or  any  part  of  the  estate  real  or  personal  for  payment 
of  debts  or  more  convenient  enjoyment,  advancement,  or  division.  In  Thompson  v. 
McKisick,  3  Humph.  631,  a  ditferent  conclusion  was  arrived  at.  There  the  bequest 
was  of  certain  negroes  to  the  testator's  daughter,  "  to  be  hers  forever,  to  be  disposed 
of  as  she  may  think  proper  amongst  her  children  and  grandchildren,  by  will  or  other- 
wise," and  it  was  held  that  slie  took  an  absolute  estate,  and  that  there  was  no  trust 
for  the  children,  &c.  The  subject  of  trusts  created  by  precatory  words,  has  recently 
been  very  thoroughly  considered  in  Pennsylvania.  In  Coates'  appeal,  2  Barr,  129,  a 
testator  had  by  his  will  given  his  real  and  personal  estate,  to  be  possessed  and  en- 
joyed by  his  wife,  for  life  during  widowhood,  "  to  be  used  and  applied  to  the  mainte- 
nance ami  support  of  his  children,  and  at  her  decease  or  marriage,  should  either  take 
place  before  they  came  of  age,  then  among  them  equally."  By  a  subsequent  will  re- 
voking all  others,  he  devised,  after  payment  of  his  debts,  the  use,  benefits  and  profits 
of  h's  real  estate  to  his  wife  for  life;  and  also  all  his  personal  estate  of  every  descrip- 
tion— "  absolutely,  having  full  confidence  that  she  will  leave  the  surplus  to  be  divided 
at  her  decease  justly  among  her  children."  It  w;X3  held  tlierc  that  the  widow  Wiis 
entitled  to  the  income  for  life,  merely  of  the  personalty,  and  was  a  trustee  for  the 
children.  The  word  "  surplus  "  wjis  construed  to  apply  only  to  what  should  remain 
after  payment  of  debts.    The  same  will  came  again  before  the  Supreme  Court,  in 


160  SUGDEN   ON   POWERS. 

of  tlicm,  if  lie  have  not  niisconilucted  liinisclf,  the  Court,  upon  a 
bill  liloil,  will  still  allow  him  to  exci-cisi;  the  ]iowcr,  although 
under  its  own  eye.(yy/) 

41.  That  rule  oujiht  C(i[ually  to  apjjly  to  a  trust,  or  power  in 
the  nature  of  one,  to  executors  to  ]jay  the  testator's  personal 
estate  unto  and  amongst  his  two  brothers  and  his  sisters,  or  their 
children,  in  such  shares  and  at  such  times  as  they,  or  the  major 
part  of  them,  or  the  survivor  of  them,  his  executors  or  adminis- 

tratoi's,  should  in  their  discretion  think  proper ;  and 
[  *174  ]  yet  in  such  a  case(w)  Sir  W.  Grant,  upon  *a  bill  filed, 

took  the  administration  of  the  finid  into  the  hands  of 
the  Court,  and  excluded  the  executors  from  exercising  the  power, 
without  giving  any  reason  for  doing  so. 

42.  So  in  an  early  case,(o)  where  a  man  by  his  will  directed 
that  certain  property  should  be  distributed  by  his  two  daughters, 
his  executrixes,  amongst  themselves,  their  brothers  and  sister,  or 
to  such  of  them,  and  in  such  proportions  as  they  should  judge 
most  fit  and  convenient,  according  to  their  needs  and  necessities  ; 
Lord  Keeper  Wright  went  much  further,  and  actually  exercised 

(771)  Infra,  ch.  11.     Lord  v.  Bunn,  2  You.  &  Coll.  C.  C.  08. 
(/i)  Longmore  v.  Broom,  7  Ves.  jun.  124.     See  Robinson  v.  Smith,  6  Madd.  194. 
(o)  Warburton  v.  Warbuiton,  2  Vein.  420;  1  Bro.  P.  C.  34;  and  see  Carr  v.  Bed- 
ford, 2  Cha.  Rep.  77. 

Mekonkey's  Appeal,  1  Harris,  253,  when  a  somewhat  difiFerent  view  was  taken  of  its 
construction.  The  widow  was  held  to  have  taken  a  life  estate  in  the  personalty,  with 
a  power  in  trust  for  the  children  over  the  principal  remaining  at  her  dcatli;  and 
therefore  an  appointment  by  her,  omitting  one  or  more  of  the  children,  was  void.  The 
word  "  surplus  "  was  there  applied  to  the  property  in  the  hands  of  the  widow. 
These  two  decisions  were  merely  interlocutory  in  the  cause.  In  Mekonkey's  Appeal, 
1  Am.  Law  Reg.  306,  8  Harris  2(58,  however,  the  case  came  up  for  final  determination, 
and  after  full  argument,  the  former  cases  were  overruled,  and  the  words  of  the  will 
held  not  to  create  a  trust.  Judge  Lowrie,  in  a  very  able  and  learned  opinion,  traced 
the  origin  of  the  rule,  in  the  earlier  English  cases,  to  a  misapplication  of  the  pro- 
visions of  the  Roman  law,  in  regard  to  legacies  founded  on  diUerent  principles,  and 
which  he  declared  never  to  have  been  adopted  in  Pennsylvania.  The  result  at  which 
the  court  arrived,  was  that  words  in  a  will  expressive  of  desire,  recommendation, 
and  conlidcnce,  are  not  words  of  technical,  but  of  common  parlance,  and  are  not 
p»-i77i(//(/C7e  sufficient  to  convert  a  devise  or  bequest  into  a  trust;  but  that  such 
words  might  amount  to  a  declaration  of  trust  when  it  appeared  from  other  parts  of 
the  will,  that  the  testator  intended  not  to  commit  the  estate  to  the  devisee  or  legatee, 
or  the  ultimate  disposal  of  it  to  his  kindness,  justice,  or  discretion.  Hill  on  Trustees, 
72,  2d  ed.,  note  by  Wharton.     1  Williams  on  Ex.,  88,  notes  to  4th  Am.  ed. 


DISCEETIONARY  POWER  NOT  EXECUTED   BY   COURT.  161 

the  power  by  giving  to  the  heir  a  doulile  share,  as  looking  upon 
him  to  stand  most  in  need  thereof ;  and  although  tlie  daughters 
insisted  upon  their  right  to  exercise  the  power,  the  House  of 
Lords  affirmed  the  decree.  This  has  justly  been  considered  a 
very  extraordinary  case  ;(;?)  but  the  doctrine  was  not  new:  in 
one  case(^)  the  whole  of  the  estate  was  given  to  the  heir-at-law, 
although  the  trust  was  to  convey  the  estate  to  such  of  the  rela- 
tions as  A  should  think  best  and  most  reputable  for  the  testator's 
family,  the  Court  judging  it  most  reputable  for  the  family  that  the 
heir-at-law  should  have  it. 

43.  But  these  cases  are  not  now  law.  The  trustees'  discretion 
was  not  only  taken  away,  but  the  Court  itself  executed  the  power. 
Such  a  power  is  now  disclaimed,  (r)  The  Court  never  exercises  a 
discretionary  power.  (.<?)  But  where  the  trust  is  under  the  discre- 
tion of  the  Court,  it  may  fix  a  period  within  which  the  power 
shall  1)c  exercised. (/I)  (1) 

(p)  See  5  Yes.  jun.  859;  Ambl.  100. 

{q)  Clarke  v.  Turner,  2  Freem.  198;  Mosely  v.  Mosely,  cited  ib.     See  Finch,  53. 
(r)  5  Ves.  jun.  850.     See  Alexander  v.  Alexander,  2  Ves.  640;  Keates  v.  Burton, 
14  Ves  jun.  4-37. 

(s)  Maddison  v.  Andrew,  1  Ves.  57. 
(0  Piper  V.  Piper,  3  Myl.  &  Kee.  159. 


(1)  A  direction  to  executors  to  sell  so  much  of  the  real  estate  as  they  think  proper, 
to  pay  debts  and  distribute  among  the  testator's  children,  may  be  exercised  by  a  sur- 
viving exeoitor;  and  it  is  not  necessary  that  he  should  previously  make  probate  or 
take  out  letters  testamentary,  for  his  authority  is  not  derived  from  the  registrar. 

And  where  testator  directed  such  sale  to  be  made  before  a  day  certain,  the  power 
may  be  exercised  after  that  day,  it  being  in  the  nature  of  a  trust.  Miller  v.  Meetch,  8 
Barr.  417. 

In  this  case  the  following  language  of  Mr.  Justice  Bell  deserves  consideration  : 

*'  Another  objection  urged  against  the  validity  of  the  sale  as  an  execution  of  the 
power  is  that  it  was  not  made  within  the  time  contemplated  by  the  testator.  But  this 
is  equally  destitute  of  merit  with  the  other  objections.  It  is  true  that  equity  will 
never  aid  the  non-execution  of  a  mere  naked  power  which  it  is  optional  with  the 
party  to  execute  or  not.  These  powers  are  never  imperative;  they  leave  the  act  to 
be  done  at  the  will  of  the  party  to  whom  they  are  given.  But  trusts  are  always 
imperative,  and  if  it  is  to  be  afifected  by  an  execution  of  a  power,  equity  will  never 
sutfor  it  to  fail  from  the  negligence  of  the  trustee,  but  will  compel  him  to  execute  it : 
16  Ves.  26.  An  instance  of  this  is  where  a  power  is  given  by  will  to  trustees  to  sell 
an  estate  and  apply  the  money  on  trusts;  so  where,  as  in  this  instance,  the  proceeds 
of  the  sale  are  to  be  distributed  in  a  particular  way.  Though  in  such  cases  a  direc- 
tion is  given  for  the  execution  of  the  power  within  a  limited  period,  it  may  be  exer- 
cised after  the  lapse  of  that  period,  for  the  time  does  not  enter  into  and  make  part  of 

14* 


l('>2  SUGDEN   ON   POWERS. 

44.  Where  the  power  is  not  exercised,  althouii,li  the  donee  of 
it  had  a  discretion,  and  there  is  no  express  gift  in  default  of  ap- 


the  power.  Where  the  principal  intent  is  to  confer  a  benefit  on  cestui  que  trusts,  & 
non-cxecatioa  of  the  power  within  the  time  limited,  shall  not  be  suffered  to  defeat  it. 
The  execution  of  a  power  to  sell  after  the  time  directed,  is  not  like  an  attempted  exe- 
cution before  the  time  prescribed,  as  was  the  case  in  Loomis  v.  McClintock,  10  Watts, 
74.  In  the  latter  case,  the  act  of  the  party  is  Toid,  for,  until  the  time  arrives  for  its 
execution,  the  power  has  no  existence;  but  after  it  has  sprung  into  life,  where  it  is 
coupled  with  a  trust  or  interest,  it  continues  to  exist  until  exercised."  Miller  v. 
Meetch,  8  Harr.  424,  per  Bell,  J. 

Lord  Eldon  in  his  judgment  in  the  case  of  Brown  v.  Higgs,  after  clearly  stating 
and  supporting  the  distinction  between  a  power  and  a  trust,  adds:  "There  is  not 
only  a  mere  trust  and  a  mere  power,  but  there  is  also  known  to  the  court  a  power 
which  the  party  to  whom  it  is  given  is  entrusted  and  required  to  execute."  And  his 
Lordship  afterwards  states  the  principle  of  the  cases  to  be,  that  if  the  power  is  a 
^wer,  which  it  is  the  duty  of  the  party  to  execute,  made  his  duty  by  the  requisition 
of  a  will,  put  upon  him  as  such  by  the  testator  who  has  given  him  an  interest  ex- 
tensive enough  to  enable  him  to  discharge  it,  he  is  a  trustee  for  the  exercise  of  the 
power,  and  not  as  having  a  discretion  whether  he  will  exercise  it  or  not;  and  the 
court  adopts  the  principle  as  to  trusts,  and  will  not  permit  his  negligence,  accident, 
or  other  circumstances,  to  disappoint  the  interests  of  those  for  whoso  benefit  he  is 
called  upon  to  execute."  Hill  on  Trustees,  p.  67.  Gibbs  v.  Marsh,  3  Mete.  243. 
Withers  v.  Yeadon,  I  Rich.  Ch.  324. 

A  testator  devised  his  real  estate  and  negroes  to  his  son,  G.  W.  in  trust,  (1)  to 
apply  the  rents,  issues,  and  profits  to  the  use  of  himself  and  family,  and  the  educa- 
tion of  his  children;  and  (2)  to  give  or  devise  by  deed  or  will,  the  said  property,  (and 
the  rents,  issues,  and  profits  thereof,  over  and  above  what  he  should  apply  to  the 
Uses  aforesaid,)  "  unto  all  or  any  child  or  children  by  him  begotten  or  to  be  be- 
gotten, in  such  way  or  manner  and  in  such  proportion  and  for  such  uses,  estates,  and 
interests,  as  he  shall  see  fit  and  proper."  G.  W.  died  leaving  a  will  whereby  he  de- 
vised the  whole  of  his  estate  to  his  wife  with  directions  to  his  executors  (his  wife  and 
sons),  to  act  under  "  his  father's  will  in  trust,  and  in  every  respect  and  manner  in- 
tended by  their  grandfather."  It  was  held  (1)  that  the  legal  title  was  vested  in  G. 
W.,  coupled  with  a  power  in  trust  to  appoint  at  his  discretion  among  his  children, 
(2)  but  the  power  could  not  be  delegated,  and  (3)  that  as  G.  W.  had  neglected  to 
exercise  the  power,  his  children  were  entitled  to  divide  the  property  equally.  Withers 
V.  Yeadon,  1  Rich.  Eq.  324. 

In  Collins  v.  Carlisle's  heirs,  7  B.  Monr.  14,  a  husband  devised  all  of  his  estate 
after  the  payment  of  his  debts  "  wholly  to  his  wife,  to  be  disposed  of  by  her,  and 
divided  among  his  children  at  her  discretion;"  and  it  was  held  that  the  wife  took  an 
estate  for  life,  with  power  to  give  it  to  her  children,  or  to  appropriate  it  to  their  use 
at  her  discretion;  and  she  dying,  the  children  took  the  undisposed  portions  of  the  es- 
tate under  the  will  and  not  as  her  heirs. 

A  testator,  after  making  provision  for  certain  relatives,  and  giving  the  use  of  the 
estate  in  question  to  hig  wife  during  her  life,  disposed  of  the  residue  of  his  estate  in 
these  words  :  "  All  the  rest  and  residue  of  my  estates  both  real  and  personal  I  give 
and  bequeath  to  my  two  brothers,  A.  and  B.,  whom  I  appoint  my  executors,  with 


DISCEETIONARY  POWER  NOT   EXECUTED   BY   COURT.  168 

pointmcnt,  but  the  gift  is  by  implication  *from  tlie  dircc-  [  *175  ] 
tion  containing  the  power,  the  Court  exercises  no  dis- 
cretion, but  distributes  the  fund  equally(?*)  .In  Longmore  v. 
Broom,  Sir  W.  Grant  held  clearly  that  the  executors  had  a  dis- 
cretion, and  might  say  to  whom  the  fund  should  be  given,  the 
parents  or  the  children.  But  the  Court  had  not  that  discretion, 
but  had  only  to  say  what  class  was  to  take,  and  then  the  distribu- 
tion must  be  equal  between  the  parents  and  the  children. 

(u)  Kemp  V.  Kemp,  5  Ves.  jun.  849;  Longmore  t.  Broom,  7  Ves.  jun.   124;  and 
see  Gibson  v.  Kinven,  1  Vern.  66. 

full  confidence  that  they  will  dispose  of  such  residue  among  our  brothers  and  sisters 
and  their  children,  as  they  shall  judge  shall  be  most  in  need  of  the  same;  this  is  to 
be  done  according  to  the  best  oftheir  discretion."  A  bill  in  equity  was  filed  to  deter- 
mine the  right  of  the  various  parties  claiming  under  the  will,  and  it  was  held,  that  ft 
trust  had  been  created  by  the  will  in  favour  of  the  brothers  and  sisters  and  their  chil- 
dren, A.  and  B.  and  their  children,  being  excluded  therefrom;  so  that  the  estate 
vested  in  A.  and  B.  as  trustees  for  the  brothers  and  sisters  and  their  children,  to  be 
enjoyed  after  the  death  of  the  widow,  and  consequently  that  afterborn  children  and 
those  who  became  needy  thereafter,  could  not  take ;  and  that  the  trust  was  not  void 
by  reason  of  the  uncertainty  of  the  persons  for  whose  benefit  it  was  created.  Bull  v. 
Bull,  8  Conn.  47.  The  court  also  in  this  case,  the  executors  having  died  without  an 
appointment,  directed  a  reference,  to  determine  who  were  the  most  needy.  Harrison 
▼.  Harrison,  2  Leigh,  1.     Hill  on  Trustees,  57,  note  to  2J  ed.  by  Wheeler. 


1(34 


SUGDEN  ON  POWERS. 


[  ^170  ]  *ClI.iPTI{R  XI. 

OF  RELIEF  AGAINST  THE   ACTUAL   EXECUTIONS   OF   POWERS. 


SECTION  I. 


OF  VOID  EXECUTIONS  BY  THE  GENERAL  RULE  OF  LAW. 


2.  Deed   executing  a  power  void   upoa 

same  grounds  as  deeds  in  general. 

3.  As  by  rasure. 

4.  Not  by  cancellation. 

5.  Void     where    consideration    bad,   as 

stifling  a  prosecution. 

6.  So  where  an  inducement  to  prostitu- 

tion. 


7.  Contra  where  praemiura  pudicitae. 
0.  Duress  avoids  tiie  deed. 

10.  Drunkenness  also. 

11.  Lunacy  also. 

12.  So  where  the  whole  transaction  is  a 

fraud. 

13.  Mere  question  of  valid  execution  to  be 

tried  at  law. 


1.  In  the  last  chapter  we  considered  in  what  cases  a  defective 
execution  of  a  power  would  be  supported,  and  we  are  now  to  in 
quire  in  what  instances  the  actual  execution  of  a  power  may  be 
set  aside,  although  the  solemnities  required  by  the  deed  creating 
the  power  have  been  duly  adhered  to.  This  our  present  inquiry 
may  be  divided  into  two  branches  :  1.  Where  the  instrument 
may  be  avoided  at  law.     2.  Where  equity  only  can  relieve. 

2.  And  first,  an  instrument  executed  under  a  power  may  be 
avoided  at  law  on  the  same  grounds  as  deeds  in  general  may.  To 
enter  into  the  consideration  of  all  the  rules  on  this  head  would  be 
an  unpardonaljle  digression  ;  but  their  leading  features,  with  re- 
ference to  cases  likely  to  arise  upon  the  execution  of 

[  *177  ]    powers,  may,  perhaps,  without  impropriety,  *be  here 
stated.     They  form  a  link  in  the  chain  of  our  subject. 

3.  If,  then,  an  instrument  be  altered  by  rasure  or  otherwise,  in 
a  material  part,  by  the  person  for  whose  benefit  it  was  intended, 
the  deed  becomes  absolutely  void,  (a)     The  opinion  formerly  was 

(a)  Whelpdalc's  case,  5  Rep.  119  a. 


EFFECT   OP   VICIOUS   CONSIDERATION.  165 

that  a  rasure  by  a  strcmger  would  have  the  same  operation  :(6) 
but  it  lialh  hitely  bccu  very  properly  decided  otherwise  ;(c)  for  it 
should  seem  that  the  true  ground  of  the  rule  is  the  fraud  of  the 
party  interested. 

4.  And  since  the  Statute  of  Frauds(fZ)  the  mere  cancellation 
of  an  instrument  will  not  defeat  the  estate  created  by  it  ;(e)  and 
even  if  the  insti'ument  would  from  its  nature  be  revocable  by  can- 
cellation, yet  if  the  cancellation  be  made  through  a  mistake  in 
facts,  or  even,  it  is  said,  through  a  mistake  in  laiv,  the  mistake 
will  annul  the  cancellation. (/) 

5.  If  a  power  be  executed  as  a  consideration  for  stifling  a 
prosecution  for  perjury,  the  execution  is  merely  void :  non  est 

factum  may  be  pleaded  to  the  deed  at  law,  and  the  special  matter 
given  in  evidence  ;(g-')  although  the  opinion  formerly  was,  that 
equity  only  could  relieve  where  the  consideration  did  not  appear 
on  the  face  of  the  deed. 

6.  So  an  execution  of  a  power,  as  an  inducement  to  a  woman 
to  live  with  the  party  in  a  state  of  prostitution,  is  void.(/i) 

7.  But  where  it  is  a  compensation  for  the  loss  of  virtue  after 
cohabitation,  or,  as  it  is  termed,  prmnium  pudiciticc, 

the  consideration   is  good,  and   the  deed  cannot  *be  [  *178  ] 
avoided, (i)(l)  although  the  man  was  married  at  the 
time   of  the   cohabitation,   and  the. woman  was  aware  of  this 
fact, (A;)  unless,  according,  as  it  should  seem,  to  Lord  Hardwicke's 

{0)  Pigot'scase,  11  Rep.  27  a. 

(c)  Ilcnfree  v.  Bromley,  6  East   310.     See  French  v.  Patton,  9  East,  351. 

(rf)  29  Car.  II.  c.  3,  s.  3. 

(e)  M'Gcnnis  v.  M'CuUough,  Gilb.  Eq.  Rep.  235;  Roe  v.  Archbishop  of  York,  6 
East,  86;  and  see  Leach  v.  Leach,  2  Cha.  Rep.  52,  which  was  before  the  statute. 

(/)  Perrott  v.  Perrott,  14  East,  423;  sed  qu. 

(;?•)  Collins  v.  Blantern,  2  AVils.  347;  and  see  Edgecombe  v.  Rodd,  5  East,  294. 

(A)  Walker  v.  Perkins,  3  Burr.  1568. 

(t)  Marchione-ss  of  Annandale  v.  Harris,  2  P.  Wms.  432;  Turner  v.  Vaughan,  2 
Wils.  339;  Hill  v.  Spencer,  Ambl.  641. 

(.V)  Priest  V.  Parrot,  2  Ves.  160;  and  see  Lady  Cox's  case,  3  P.  Wms.  340;  Knye 
V.  Moore,  1  Sim.  &  Stu.  61;  S.  C.  6  B.irn.  &  Cress.  133,  nom.  Nye  v.  Moseley;  9 
Dowl.  &  Ry.  165. 


(1 )  Burr  V.  Winthrop,  I  Johns.  Ch.  R.  320.  387,  338.  2  Story's  Eq.  Jur.  §  793  a. 
793  b.  and  not&s.  Hortou  v.  Gibson,  4  S.  Car.  Eq.  Rep.  139.  Gardner  v.  Heyer,  2 
Paige's  Ch.  R.  11.  Pratt  v.  Flnmer,  5  Harr.  &  Johns.  R  10.  Mintuni  v.  Seymour, 
4  Johns.  Ch.  R.  500.  2  William's  Ex'rs,  804,  2d  Am.  Ed,  Shearman  v.  Angel,  1 
Bailey  Eq.  R.  351;  2  Kent's  Com.  217,  5th  ed 


166  SUGDEN   ON   POWERS. 

opinion,  the  woman  was  previous  to  the  intimacy,  a  prostitute  ;(/) 
but  in  a  later  case,  Lord  Camden  held  clearly  that  there  was  no 
principle,  even  in  equity,  which  says  a  man  may  not  make  a  volun- 
tary provision  for  a  conunon  prostitute,  and  he  made  a  decision 
accordingly,  in  a  case,  the  circumstances  of  which  were  well  calcu- 
lated to  put  the  rule  to  the  test  ;(wt)  and  Lord  Camden's  opinion 
has  been  contirmed  l»y  a  decision  of  the  Court  of  Exchequer. (m) 

8.  And  in  like  manner  tiie  deed  may  be  avoided  whenever  the 
consideration  for  executing  it  is  such  as  the  policy  of  the  common 
law  rejects,  or  as  the  statute  law  forl)ids, 

9.  If  the  deed  be  executed  under  duress,  it  is  voidable,  but  not 
actually  void  ;  consequently  the  party  may  avoid  it  by  special 
pleading,  but  cannot  plead  non  est  factum^  and  give  the  special 
matter  in  evidence. (o) 

10.  Tliere  are  only  two  other  cases  which  I  shall  here  notice — 
drunkenness  and  lunacy.  As  to  drunkenness,  the  distinction  seems 
to  be,  that  the  instrument  cannot  be  relieved  against,  unless  the 
party  was  drawn  in  to  drink  through  the  management  or  con- 
trivance of  liim  who  gained  the  deed,(/?)  in  which  case  the  deed 
is  absolutely  void,  both  in  law  and  in  equity,  and  conseiiuently 
non  est  factum  may  be  pleaded  to  it  at  law,  and  the  drunkenness 
by  the  fraud  of  the  plaintiff  may  be  given  in  evidence. (^)(1) 

(/)  See  Clarke  v.  Periam,  2  Atk.  333.  337. 

(m)  Hill  V.  Spencer,  Ainbl.  611. 

(«)  Gray  v.  Mathhxs,  5  Ves.  jun.  287. 

(0)  See  Bull.  N.  P.  172. 

(/))  Johnson  v.  Medlicott,  3  P.  Wms.  131,  n.,  which  is  opposeJ  to  Pitt  v.  Smith,  3 
Camp,  Ca.  35;  Fenton  v.  HoUovvay,  1  Stark.  126.  Sec  Butler  v.  Mulvihill,  1  Bligh, 
137;  Nagle  v.  Baylor,  3  Dru.  k  War.  60. 

(9)  Colev.  Robbins,  Bull.  N.  P.  172. 

(1)  See  Rutherford  v.  RufiF,  4  Desauss.  Ch.  R.  346,  Per  Desaussure,  Ch.  Arnold 
V.  Hickman,  6  Munf.  R.  15,  pi.  1.  Campbell,  et  al.  v.  Ketch um,  et  al.,  1  Bibb's 
Rep.  406.  Curtes  v.  Bell,  1  South.  N.  J.  Rep.  361.  Where  also  the  state  of  intoxi- 
cation is  so  extreme  as  to  deprive  a  man  of  his  reason,  it  would  invalidate  any  deed 
obtained  from  him  while  in  that  state.  Wade,  et  al.  v.  Colvert,  2  S.  Car.  Const.  Rep. 
27.     King's  Ex'rs  v.  Bryant's  Ex'rs,  Hayw.  Rep.  394. 

"  To  set  aside  any  act  or  contract  on  account  of  drunkenness  it  is  not  sufficient  that 
the  party  is  under  undue  excitement  from  liquor.  It  must  rise  to  that  degree,  which 
may  be  callcJ  excessive  drunkenness,  where  the  party  is  utterly  deprived  of  the  use 
of  his  re.oson  and  understanding;  for  in  such  a  c.ise  there  can  in  no  just  sense,  be  said 
to  be  a  serious  and  deliberate  consent  on  his  part;  and  without  this,  no  contract  or 
other  act  can,  or  ought  to  be  binding,  by  the  law  of  nature.     If  there  be  not  that 


EFFECT  OF  LUNACY.  167 

11.  As  to  lunacy,  although  the  deed  may  be  set  aside 
by  *the  committee  of  the  lunatic,  or  by  his  heirs  after  [  *179  ] 
his  death  ;  yet  it  is  incontrovcrtibly  estalilished  that 
the  party  himself  cannot,  after  he  has  recovered  his  senses,  plead 
his  lunacy  in  avoidance  of  the  deed.(r)  But  a  distinction  has 
been  established  by  the  case  of  Yates  v.  Been, (5)  which  does 
not  appear  to  have  been  attended  to  l)y  -writers  on  this  subject, 
although  they  refer  to  the  case.  To  debt  upon  articles  the 
defendant  pleaded  non  est  faclum,  and  upon  the  trial  oftered  to 
give  the  lunacy  in  evidence.  The  Chief  Justice  thought  it  ought 
not  to  be  admitted,  upon  the  rule  in  Beverley's  case,  that  a  man 
shall  not  stultify  himself;  but  on  the  authority  of  Smith  v.  Carr, 
5th  July  1728,  where  Chief  Baron  Pengelly  in  the  like  case 
admitted  it,  and  on  considering  the  case  of  Thompson  v.  Leach, 
the  Chief  Justice  permitted  it  to  be  given  in  evidence,  and  the 

(r)  Beverley's  case,  4  Rep.  123  b;  Stroud  v.  Marshall,  Cro.  Eliz.  328;  Murley  v. 
Sherren,  8  Adol.  &  Ell.  754.  As  to  actions  of  assumpsit,  see  Brown  v.  Joddrell,  1 
Mood.  &  Malk.  105;  3  Carr.  &  P.iyne,  30. 

(s)  Yates  v.  Boen,  2  Str.  1104. 

excessive  degree  of  drunkenness,  then  courts  of  equity  will  not  interfere  at  all,  unless 
there  has  been  some  contrivance  or  management  to  draw  the  party  in  to  drink,  or 
some  unfair  advantage  taken  of  his  intoxication,  to  obtain  an  unreasonable  bargain 
or  benefit  from  him."  1  Story's  Eq.  Jur.  §  231.  See  Barrett  v.  Baxton,  2  Aiken's 
R.  107.  Burroughs  v.  Rickraan,  1  Green's  N.  .J.  Rep.  233.  A  court  of  chancery  will 
not  enforce  the  performance  of  an  agreement  entered  into  with  a  man  in  a  state  of 
intoxication,  altliough  the  party  insisting  on  the  performance  did  not  contribute  to 
make  him  intoxicated.  The  Court  will  not  assist  either  party  in  such  a  case  Wilnuiel 
V.  Morgan,  N.  J.  Chancery,  March  T.  1827,  opinion  of  Williamson,  Ch.  1  Ilalsted's 
Dig.  tit.  Intoxication.  Rodman  v.  Zilley,  1  Saxton's  N.  J.  Ch  Rep.  320.  Crane  v. 
Conklin,  1  Id.  346.  Clark  v.  Caldwell,  G  Watts's  R.  139.  Steel  v.  Young,  4  Id.  459. 
Taylor  v.  Patrick,  1  Bibb's  Rep.  1C8.  Reinicker  v.  Smith,  2  Harr.  &  Johns.  R  423. 
Williams  v.  Inabuel,  1  Bailey's  S.  C.  Rep.  343.  Reynolds  v.  Waller's  Heir,  1  Wash. 
(Va.)  Rep.  207.  Peyton  v.  Rawlins,  1  Hay w.  R.  77.  Wigglesworth  v.  Steers,  1 
Hen.  &  Munf.  R.  70.  Dorr  v.  Munsell,  13  Johns.  R.  430.  Seymour  v.  Delaney,  3 
Cow.  R.  445.  White  v.  Cox,  3  Hayw.  R.  82.  Foot  v.  Tewksbury,  2  Verm.  R.  07. 
Prentice  v.  Achorn,  2  Paige  Ch.  R.  30.  Harrison  v.  Lemon,  3  Blackf.  (lud.)  Rep. 
51.  Hotchkiss  v.  Fortson,  7  Yerger's  R.  67.  Gore  v.  Gibson,  13  Mees.  &  Welsby's 
R.  G'J3;  S.  C.  9  (Lond.)  Jur.  140,  and  Jurist  Reporters,  (Wm.  M.  Best,  Esq.  of 
Gray's  Inn,)  note  p.  142,  where  the  continental  authorities  will  be  found  collected  and 
digested. 

It  is  perhaps,  not  unworthy  of  remark,  that  the  case  of  Gore  v.  Gibson  was  decided 
on  the  authority  of  the  cases  found  collected  in  2  Kent's  Com.  451.  See  the  opinion 
of  Ch.  Baron  Pollock. 


168  SUGDEN   ON   POWERS. 

plaintiff  upon  the  evidence  l)ecame  non-suit.  Now  the  history  of 
the  revolution  in  thii-  branch  of  law  is  this  :  When  Beverley's 
case  was  decided,  it  was  liolden  that  deeds  executed  l>y  lunatics 
were  vitidaMe  (udy,  Imt  nut  actually  void,  and  therefore  they 
could  only  be  set  aside  l»y  special  pleading',  and  by  the  rule  of  law 
the  i):irty  could  not  stultily  himself.  And  ^Ir.  Justice  Blackstonc, 
followinu-  the  old  i-nlc.  has  laid  it  down  that  deeds  of  lunatics  are 
avoidable  only,  and  not  actually  void.(/)  But  in  Thoni])son  v. 
Leach,  this  distinct it>n  Avas  solemnly  established,  that  a  f«ofl'racnt 
witli  livery  of  seisin  by  a  lunatic  because  of  the  solemnity  of  the 
livery,  was  voidalde  only ;  but  that  a  bargain  and  sale,  or  surren- 
der, <fcc.  was  actually  void.(//)  This,  tliereforc  was  the  ground 
of  the  decision  in  Yates  v.  Boen.  When  the  Chief  Justice 
remembered  that  an  innocent  conveyance,  or  a  deed  by  a  lunatic, 

was  merely  void,  he  instantly  said  that  non  est  factum 
[  'ISO  ]  might  be  jdeaded  *to  it,  and  the  special  matter  given  in 

evidence  ;  and  this  applies  strictly  to  deeds  executing 
powers.  But  in  the  case  of  a  feoffment  with  livery  of  seisin,  the 
rigorous  rule  of  law  still  prevails,  and  the  party  cannot  stultify 
himself.(l)  This  is  now  altered  by  the  7  k  8  A^ict.  c.  70,  s.  7, 
which  enacts  that  no  conveyance  shall  be  voidable  only  Avhen 
made  by  feofl'ment  or  other  assurance,  where  the  same  Avould  be 
absolutely  void  if  made  by  release  or  grant. 

12.  Wliere  a  power  with  a  condition,  as  in  Doe  v.  Martin, (.r) 
is  complied  with  for  form's  sake,  but  in  substance  is  dejiarted 
from,  and  the  whole  transaction  is  founded  in  fraud,  the  execution 
will  be  a  nullity  at  law  as  well  as  in  equity.  But  such  a  case 
should  not  be  confounded  with  those  where,  though  there  is  no 
fraud,  the  execution  is  void  at  law  because  the  power  is  not  duly 
exercised. 

lo.  Wlierc  the  question  is  simply  whether  the  power  be  well 
executed  or  not,  as  in  the  common  case  of  a  leasing  power,  the 
question  must  be  tried  at  law,  and  if  there  is  nothing  more  in  the 

(/)  -1  Comra.  291. 

(u)  Comb.  408. 

(x)  4  Term  Rep.  39.     Vide  infra,  ch.  18;  Doe  v.  Carr,  1  Car.  &  Mars.  123. 

(1)  All  the  authorities  may  be  found  on  thia  doctrine  of  the  law  in  1  Story's  Eq. 
Jur.  §  226  and  notes.  • 


OF   VOID   EXECUTIONS   IN   EQUITY   ONLY. 


169 


case,  a  bill  in  equity  to  set  aside  the  execution  of  the  power  can- 
not be  maintained.  (?/) 


*SECTION  II. 


[  *181  ] 


OF   VOID   EXECUTIONS   IN    EQUITY   ONLY. 


1.  Grounds  for  equitable  jurisdiction. 

3.  Trustee  joining  in  appontment  by  mis- 

representation, void. 

4.  Appointment  to  one  child  upon  a  bar- 

gain, void. 

5.  Appointment  of  a  jointure  partly  for 

liusband's  benefit,  void. 

6.  So  an  advance  of  money  by  the  hus- 

band to  increase  his  power. 

7.  Jointures  aflected  only  pro  tanto  by 

fraud. 
'.).  Lord   Hardwicke's  opinion,  the  same 
rule  applied  to  an  appointment  to 
a  cliild. 
10.  C  But  the  latter  decided  to  be  void  in 

14.  i      toto. 

12.  Distinction  between  the  two  powers. 

15.  Son  appointee,  relieved  as  entitled  in 

default  of  appointment,  though  par- 
ticcps  criminis. 
18.  Purchaser  liable  to  the  same  equity. 


19.  )  Where  he  is  safe:   M'Queen  v.  Far- 

20.  5      quahar. 

22.  Anger,  &c.  not  a  ground  to  impeach 

an  appointment. 

23.  Davis   v.    Uphill.      Where   a   parent 

having  a  power  may  take  a  benefit. 

24.  Appointment  to  an  infant  for  benefit 

of  donee,  bad. 

25.  Appointee  with  notice  of  agi-eenient 

not  to  execute  power,  bound. 

26.  Where  a  purchaser  under  a  power  of 

sale  is  bound  to  see  proper  rents 
are  reserved. 

27.  Appointment  to  a  younger  child  void 

upon  his  becoming  eldest. 

29.  Marriage  brokage  avoids  an  appoint- 

ment. 

30.  And  the  interest  created  will  be  set 

aside  in  toto  for  the  remainder- 


1.  There  are  some  cases  which  a  court  of  law  cannot  reach. 
This  happens  where  the  power  is  duly  executed  according  to  the 
terms  of  it ;  but  there  is  some  bargain  behind,  or  some  ill  motive, 
which  renders  the  execution  fraudulent,  and  will  enable  equity  to 
relieve.  It  were  difficult  to  draw  the  precise  line  between  the 
jurisdiction  of  law  and  equity  on  this  head.  The  substantial 
grounds  upon  which  equity  maintains  almost  an  exclusive  juris 
diction  in  cases  of  fraud  is,  that  it  is  enabled  to  mould  and  cut 
down  the  fraudulent  instrument  according  to  good  con- 
science ;  *whcreas  a  court  of  law,  if  it  take  cognizance  [  *182  ] 
of  the  sultject,  must  entirely  defeat  the  instrument;  it 
cannot  maintain  the  execution,  as  far  as  it  is  within  the  meaning 
of  the  power,  and  set  it  aside  so  far  only  as  it  is  a  fraud  on  the 
(2/)  Tichburn  v.  Leigh,  6  Vin.  Abr.  365,  pi.  11. 

Vol.  II.  15 


170  SUGDEN   ON   POWERS. 

authority  ;  but  where  the  execution  is  altogetlier  a  fraud  on  the 
power,  it  may  be  asked,  why,  if  you  can  once  attack  a  deed  exe- 
cuted under  a  power  on  tlie  ground  of  fraud,  may  not  that  fraud 
be  established  at  law  as  well  as  in  equity  ?  For  this  the  case  of 
Collins  V.  l>lantern,(c)  is  a  strong  authority.  It  is  not  impossible 
that  it  may  be  established,  that  whatever  is  a  totally  fravdident 
execution  of  a  power  may  be  taken  advantage  of  in  either  court. 
It  has  never  been  decided  tliat  a  court  of  law  cannot  enter  into 
the  consideration  of  the  fraud ;  and  until  Collins  v.  Blante^n  was 
decided,  it  was  the  general  opinion  that  a  court  of  law  would  not 
a'dvert  to  a  consideration  unless  it  appeared  on  the  face  of  the 
instrument.  In  the  case  of  Butcher  v.  Butcher, (a)  a  question 
arose,  whether,  under  a  power  to  appoint  to  children,  equity  could 
relieve  against  an  appointment  under  which  a  share  merely  illu- 
sory was  given  to  one  child.  The  Master  of  the  Rolls  said,  in 
terms,  the  power,  though  limited  as  to' objects  is  discretionary  as 
to  shares.  A  court  of  law  says,  no  object  can  be  excluded ;  but 
there  it  stops.  It  docs  not  attempt  to  correct  any  the  extremest 
inequality  in  the  distribution  ;  and  yet  if  that  is  a  fraudulent  exe- 
cution of  the  power,  why  is  it  not  void  at  law  ?  A  fraudulent  act 
has  no  more  validity  in  a  court  of  law  than  in  a  court  of  equity  ; 
and  if  it  is  not  a  fraudulent  execution,  upon  what  principle  does 
a  court  of  equity  deny  it  effect  ?  It  is  sometimes  said,  this  court 
interferes  for  the  purpose  of  carrying  into  eflcct  the  intention  of 
the  party  creating  the  power,  who  must  have  meant  that  each 
object  should  derive  the  same  real  benefit  from  the  execution  of 

the  power.  Now,  every  instrument  must  receive  the 
[  *183  ]  same  construction  from  every  *court.     Whatever  is  its 

true  meaning  must  be  its  meaning  every  where.  If  then 
the  true  meaning  of  the  power,  however  discretionary  in  terms, 
be,  that  each  object  shall  have  what  is  called  a  substantial  share, 
it  is  not  executed  according  to  its  true  meaning,  and  therefore  it 
is  not  well  executed  by  an  ap})ointmcnt  that  docs  not  give  to  each 
object  a  substantial  share.  A  court  of  equity  may,  in  the  exercise 
of  its  own  particular  jurisdiction,  supply  defects  in  the  execution 
of  a  power.  But  he  could  not  well  understand  how  the  question 
whether  a  power  is  well  or  ill  executed,  could  receive  different 

{z)  Collins  v.  Blautern,  2  Wils.  347. 

(a)  Butcher  v.  Butcher,  9  Ves.  jun.  383;  vnd  see  1  Burr.  125. 


VOID   APPOINTMENTS   IN   EQUITY.  171 

determinations  in  different  courts.  If  it  is  not  executed  according 
to  its  true  import,  how  can  a  court  of  law  say  it  is  well  executed ; 
and  if  it  is  executed  according  to  its  true  import,  how  can  a  court 
of  equity  say  it  is  ill  executed.  (I) 

2.  Upon  questions  like  that  in  the  last  case,  the  jurisdiction 
exercised  by  equity  is  infinitely  more  strong  than  the  common 
relief  in  case  of  fraud.  If  a  man,  having  a  power  to  appoint  to 
A.  or  B.,  appoint  to  A.,  in  consideration  of  a  sum  paid  by  him, 
equity -will  relieve  against  the  fraud,  and  the  courts  of  law  would 
refuse  to  interfere,  on  tlie  ground  that  they  have  not  the  samp 
means  of  enforcing  the  discovery  of  fraud,  and  of  relieving  against 
it.  But  where,  as  in  Butcher  v.  Butcher,  a  man  has  a  power  over 
a  fund,  which  it  is  admitted  will  at  law .  enable  him  to  give  any 
share,  however  trifling  to  one  party,  and  he  without  fraud  exer- 
cise that  power  accordingly,  equity,  by  interposing  its  authority, 
actually  puts  a  different  construction  on  the  instrument  to  what  it 
must  receive  in  a  court  of  law  ;  and  yet  if  a  power  gives  a  clear 
right  to  appoint  to  several  persons,  or  any  of  them  exclusively  of 
the  others,  equity  can  grant  no  relief  against  the  bona  fide  exer- 
cise of  it  in  favour  of  some  of  the  objects,  excluding 

the  others.     But  however  strange  *this  doctrine  may  [  *184  ] 
seem,  it  was  well  established  that  where  the  power  did 
not   authorize  an   exclusive   appointment,  equity  would  relieve 
against  any  appointment  of  an  illusory  share,  although  this  relief 
can  no  longer  be  administered.  (&) 

3.  I  now  proceed  to  state  the  cases  of  fraud  in  which  equity 
has  relieved  :  where  a  father,  having  an  exclusive  power  of  ap- 
pointing to  children  with  the  consent  of  a  trustee,  prevailed  on 
the  trustee  to  join  in  appointing  the  estate  to  the  youngest  son,  by 
representing  the  eldest  as  uudutiful  and  extravagant,  upon  a  bill 
by  the  eldest  son  to  set  aside  the  appointment,  it  was  decreed  ac- 
cordingly, upon  proof  of  the  plaintiff  being  dutiful,  and  not  ex- 
travagant, and  that  the  father  had  misrepresented  liim  ;  and  al- 
though the  trustee's  evidence  was  admitted,  yet  Lord  Hardwicke 
refhscd  to  admit  the  father's  evidence  to  prove  the  plaintiff 's 
undutifulncss  and  extravagance.     The  power  was  treated  as  a 

(/>)  Vide  supra,  ch.  7,  s.  6. 

(I)  The  rule  of  equity,  as  we  have  seen,  has  been  altered,  but  the  text  is  preserved 
for  the  purpose  for  which  it  was  introduced — the  general  reasoning. 


172  SUGDEN   ON  POWERS. 

trust  to  be  executed  with  discretion  ;  and  the  father  bein^'  charged 
with  a  breach  of  trust,  couhl  not  be  aUowed  himself  to  prove  the 
undutifuhiess  and  extravagancy  of  his  son,  upon  wliich  the  cause 
depended.  (r)(T) 

4.  So  if  a  i)arcnt  having  a  power  to  appoint  the  estate  unto  any 
of  his  children,  exclusively  of  tlie  others,  appoint  to  one,  upon  a 
bargain  made  beforehand  with  that  cliild,  that  he  shall  pay  a  con- 
sideration for  it,  equity  will  relieve  against  the  appointment. (^) 

5.  Again,  if  a  person  having  a  power  of  jointuring,  execute  it 

in  favour  of  his  wife,  but  it  is  agreed  between  the 
[  *185  ]  *parties  that  the  wife  shall  receive  part  only  of  the 

jointure  for  her  own  benefit,  and  that  the  residue  shall 
be  applied  for  the  liusband's  benefit,  equity  will  set  aside  the  execu- 
tion of  the  power  so  far  as  it  is  in  fixvour  of  the  husband  himself, 
on  the  ground  of  its  being  a  fraud  on  the  power  and  tliosr 
creating  it.(IL)  And  no  confirmation  by  the  wife  after  the 
death  of  the  husband  will  avail ;  the  ground  of  relief  is  the  fraud 
on  the  remainder-man. (e) 

(c)  Scroggs  V.  Scrogga,  Ambl.  272;  App.  No.  8;  the  facts  stated  from  Reg.  Lib. 

(rf)  See  1  vol.  Ca.  &  Opin.  34;  and  see  1  Ves.  jun.  310;  Tucker  v.  Tucker,  Tucker 
V.  Sanger,  13  Price,  607;  M'Clell.  424. 

(c)  L.ine  V.  Page,  Ambl.  233. — Note,  this  was  a  case  of  ranr  fraud.  See  Appen 
No.  26;  the  facts  stated  from  Reg.  Lib.  Aleyn  v.  Belchier,  Reg.  Lib.  A.  1757,  fol.  432. 
(B.);  App.  No.  27,  1  Eden,  132.    See  Daubeny  v.  Cockburn,  1  Mer.  626. 

(I)  In  this  case,  the  reporter  says,  that  Sir  Geo.  Downing  v.  Bagnal,  6th  and  7th 
July,  1753,  was  cited  for  the  plaintitf.  The  case,  however,  does  not  relate  to  the 
question,  and  must  have  been  cited  merely  to  show  the  effect  of  concealment.  The 
case  is  in  Reg.  Lib.  A.  1775,  fol.  95.  The  facts  in  the  Register's  book  led  me  to  dis- 
cover that  the  case  is  reported  by  Ambler  himself,  by  the  name  of  Downing  v. 
Townsend,  280.  592.(1) 

(II)  The  late  Mr.  Justice  Ashurst,  when  at  the  bar,  sail,  arguendo,  "Fraud,  par- 
ticularly in  the  case  of  powers,  is  cognizable  in  a  court  of  law;  -Lane  v.  Page,  T.  27 
Geo.  2,  B.  R.  A  power  given  for  one  purpose  shall  not  be  exercised  for  another, 
though  within  the  letter  of  the  power."  1  Blackst.  619.  If  the  Court  of  King's 
Bench  held  the  execution  bad  in  Lane  v.  Page,  that  case  would  be  an  important 
authority  with  reference  to  the  doctrine  discussed  at  the  opening  of  this  section.  No 
notice  is  taken  in  Reg.  Lib.  of  any  proceedings  having  been  had  at  law;  and  from 
the  circumstance  of  the  plaintiff  at  law  having  also  been  plaintiff  in  equity,  it  wouM 
seem  that  he  did  not  prevail  at  law.  I  have  searched  for  the  case  in  the  King's 
Bench  without  success. 

(1)  See  Drum  v.  Lessee  of  Simpson,  6  Binn.  R.  478,  where  the  trustee  was  ad- 
mitted. "  The  case  of  Scroggs  V.  Scroggs,  Ambler's  R.  272,  bears  a  strong  resem- 
blance to  the  present."     Per  Tiighman,  Ch.  J.,  p,  432. 


FRAUDULENT   APPOINTMENT   FOR   WIFE   OR   CHILD.  173 

6.  So  if  there  is  a  power  to  make  a  jointure  under  restrictions, 
as  100/.  a  3'car  for  every  1,000/.,  and  the  husband  himself  advance 
a  sum  of  money  in  order  colourably  to  enable  him  to  make  the 
larger  jointure,  the  Court  will  reject  such  part  as  is  more  than 
proportional  to  the  real  fortune. (/)  But  in  these  cases  equity 
will  not  set  aside  the  whole  settlement,  but  merely  that  part 
which  is  infected  with  fraud,  (g) 

7.  In  Lane  v.  Page  the  jointure  was  made  before  marriage,  but 
upon  the  corrupt  agreement  for  the  benefit  of  the  husband :  the 
woman  was  of  age,  and  acted  for  herself;  but  still  Lord  Hard- 
wicke  supported  the  jointure  to  the  extent  of  the  ab- 
solute provision  for  her,  although  he  rejected  *a  surplus  [  *186  ] 
provision  for  her  after  payment  of  the  husband's  debts. 

He  said  that  fraud  will  affect  only  so  far  as  it  extends,  and  equity 
will  not  say  that  particeps  criminis  shall  have  no  benefit  of  the 
agreement  in  any  part.  So  in  the  case  put,  of  a  poioer  to  make 
a  jointure  under  restrictions,  the  fraud  shall  not  run  through  the 
vjhole,  but  the  execution  shall  be  good  for  so  much  as  is  propor- 
tionable to  her  fortune.  In  Aleyn  v.  Belchier  the  power  was  exe- 
cuted, and  the  fraudulent  agreement  made  subsequently  to  the 
marriage ;  and  although  the  remainder-man,  by  his  bill,  submit- 
ted to  pay  the  jointure  which  the  wife  was  really  to  have,  so  that 
the  point  did  not  call  for  a  decision,  yet  Lord  Northington  treat- 
ed the  case  as  if  it  was  similar  to  Lane  v.  Page  ;  and  the  sub- 
mission shows  the  impression  of  the  Bar. 

8.  And  in  a  case  where,  after  marriage,  the  husband  executed 
the  power  of  jointuring  in  his  wife's  favour  upon  an  agreement 
with  her,  and  a  creditor  of  his,  that  she  should  grant  out  of  her 
own  estate  to  the  creditor  an  annuity  for  her  life  equal  to  the 
jointure,  to  become  payable  on  her  death,  the  execution  of  the 
power  was  supported. (A) 

9.  But  a  power  of  jointuring  is  distinguishable  from  a  power  of 
appointing  to  children.  In  delivering  judgment  in  Lane  v.  Page, 
Lord  Hardwicke  observed,  that  he  was  not  clear  that  (as  argued 

(/)  SeeAmbl.235.  239. 

(ff)  Lane  v.  Page,  Aleya  v.  Belchier,  ubi  sup.;  Palmer  v.  Wheeler,  2  Ball.  & 
Beatty,  18. 

(/i)  Baldwin  v.  Roche,  5  Ir.  Eq.  Rep.  110. 

15' 


174  SUODEN   ON   POWERS. 

by  |)laintilil''s  counsel)  where  tlicrc  is  a  jiowcr  of  ajipoiiitmcut  to 
children,  and  part  is  aj)pointcd  fraudulently,  the  whole  appoint- 
ment is  void,  lie  could  not  say  it  was  so.(i)  According  to 
another  rcport,(^)  his  expressions  were :  One  case  put  he  was 
not  clear  in.  If  a  num  having  a  power  to  appoint  10,000/.  amouir 
children,  appoints  8,000/.  to  one  child  on  agreement  to  take  back 
2,000/.,  it  would  not  be  good  for  the  6,000/.     tie  knew  of  no  case 

of  that  kind.  In  another  passage  in  Ambler,  where 
[  *187  ]  he  is  putting  examples  of  "instruments  being  set  asitlc 

only  pro  ianlo,  lie  added,  so  where  fraudulent  appoint- 
ment amongst  cliildren,(/)  In  the  other  report, (w)  the  passage 
runs  thus  :  As  in  a])pointments,  not  exceeding  such  a  sum,  amongst 
children,  and  he  appoints  certain  sums,  reserving  a  part  to  him- 
self, it  would  not  set  aside  the  whole.  Lord  Hardwickc,  there- 
fore, appears  to  have  thought  that  even  m  such  a  case  the  a]>- 
pointment  would  only  be  set  aside  to  the  extent  of  tlie  fraud. 

10.  But  in  Daubeny  v.  Cockburn,(;i)  where  the  power  was  to  ap- 
point to  all  or  such  one  or  more  of  the  children  as  the  father,  or  sett- 
lor, should  choose,  and  in  default  of  appointment  the  fund  was  limit- 
ed to  the  only  son,  his  executors,  &c.;  and  the  father  appointed  a 
large  sum  to  one  of  his  dau^'hters,  upon  a  bargain  beforehand 
with  her  for  his  benefit ;  it  was  held  by  Sir  William  Grant,  that 
the  appointment  was  void  in  toto.  He  said,  that  upon  principle, 
and  notwithstanding  Lord  Hardwicke's  dicta,  he  did  not  see  how 
any  part  of  a  fraudulent  agreement  can  be  supported,  except 
where  some  consideration  has  been  given  that  cannot  be  restored, 
and  it  has  consequently  become  impossible  to  rescind  the  transac- 
tion in  toto,  and  to  replace  the  parties  in  the  same  situation.  Li 
the  case  of  Lane  v.  Page,  the  subsequent  marriage  formed  such  a 
consideration  on  the  part  of  the  wife.  In  the  case  of  Aleyn  v. 
Bclchier,  where  the  appointment  was  subsequent  to  the  marriage, 
it  can  hardly  be  said  to  have  Ijcen  decided  that  the  appointment 
was  good  in  any  part.     For  the  bill  contained  a  submission  to  pay 

(i)  Ambl.  l>34. 

{k)  lb.  n.  4;  de  Grey's  MSS.  in  Blunt's  edit. 

(/)  Ambl.  235. 

(m)  lb.  n.  8. 

(h)  1  Mer.  62G. 


FRAUDULENT   APPOINTMENT  FOR   WIFE   OR   CHILD.  175 

the  annuity  to  the  wife,  and  only  sought  relief  against  the  other 
objects  of  the  appointment. 

11.  In  ordinary  cases  of  fraud,  he  observed,  tlie  whole  transac- 
tion is  undone,  and  the  parties  are  restored  to  their  original  situa- 
tion. If  a  partially  valuable  consideration  has  been  given,  its 
return  is  secured  as  the  condition  on  which  equity  re- 
lieves against  the  fraud.  But  in  such  a  case  as  *the  [  *188  ] 
present,  the  appointment  of  any  particular  proportion  to 

any  particular  child  is  a  purely  voluntary  act  on  the  part  of  the 
parent,  and  although  as  good,  if  fairly  made,  as  if  the  considera- 
tion were  valuable,  yet  what  is  there  that  the  Court  can  treat  as 
a  consideration  which  must  be  restored  if  a  fraudulent  appoint- 
ment be  set  aside,  or  as  incapable  of  restitution,  and  therefore 
support  the  appointment,  so  far  as  it  is  ior  the  child's  benefit. 
To  say.  It  is  to  be  supported  to  that  extent,  would  be  to  say 
that  the  child  shall  have  the  full  benefit  of  the  fraudulent  agree- 
ment. Either  then  you  must  hold  that  a  child  giving  a  considera- 
tion for  an  appointment  in  its  favour  is  guilty  of  no  fraud  on  the 
power,  or  you  must  wholly  set  aside  the  appointment  procured  by 
the  fraud.  Such  a  bargain  is  a  fraud  upon  the  other  objects  of 
the  power,  who  might  not,  and  in  all  probability  would  not,  have 
been  excluded  but  for  this  agreement.  It  is  more  particularly  a 
fraud  upon  those  who  are  entitled  in  default  of  appointment,  for 
non  constat  that  tlie  father  would  have  appointed  at  all  if  the 
child  had  not  agreed  to  the  proposed  terms. 

12.  lit  seems  clear,  therefore,  that  Sir  W.  Grant,  if  unrestrain- 
ed by  authority,  would  have  held  such  a  jointure  made  after  mar- 
riage altogether  void  in  equity,  unless  the  wife's  coverture  had 
been  dcenicd  a  protection  to  her.  The  same  principle  would  ex- 
tend to  Lane  v.  Page  ;  for  although  the  consideration  of  marriage 
was  given  after  the  execution  of  the  power,  and  could  not  be  re- 
called, yet  the  fraudulent  agreement  upon  which  the  whole  was 
founded  was  made  before  the  marriage,  and  whilst  the  woman  was 
free  to  withhold  the  consideration.  Lord  Ilardwicke  treated  her 
as  particeps  criminis,  but  still  held  her  entitled  as  far  as  the  joint- 
ure was  not  to  V)e  fraudulently  applied,  and  Lord  Northington  en- 
tertained the  same  opinion. 

V\.  But  the  case  l)efore  Sir  AVilliam  Grant  is  distinguishable 
from  the  former  cases,  the  doctrine  in  which  is  not  likely  to  be  dis- 


176  SUGDEN   ON   POWERS. 

[  *189  ]  turbcd.  lu  the  cuyc  of  a  jointuring  power  *thc  wife  is  the 
onhj  object,  and  equity  adopts  a  just  rule  when  it  al- 
lows the  appointment  to  stand  as  far  as  it  is  within  the  power. 
But  in  the  case  of  a  power  to  appoint  to  children,  there  are  other 
objects,  and  one  who  obtains  an  appointment  upon  a  faudulent 
agreement  ought  not  to  be  permitted  to  retain  it  against  the  other 
objects  who  have  1)een  guilty  of  no  fraud,  and  would  have  taken 
in  defaultof  api)uintment  equally  with  the  appointee,  if  no  fraudu- 
lent agreement  had  been  entered  into.  In  Daubeny  v.  Gockburn 
the  son  was  one  of  the  objects  of  the  power,  and  he  took  the  whole 
of  the  fund  in  default  of  appointment.  Sir  William  Grant  refers 
to  the  above  ground.  Such  a  bargain,  he  says,  is  a  fraud  on  the 
other  objects  of  the  power.  But  he  adds,  that  it  is  more  particu- 
larly a  fraud  upon  those  who  are  entitled  in  default  of  appoint- 
ment. Now  this  latter  ground  of  course  applies  to  a  power  of 
jointuring  as  well  as  to  a  power  of  appointing  to  children,  for  non 
constat  that  the  husband  would  have  appointed  at  all  to  the  wife, 
had  she  not  agreed  to  the  proposed  terms.  To  this  view,  how- 
ever, the  judgment  of  Lord  Hardwicke,  and  the  opinion  of  Lord 
Northingham  are  opposed.  The  husband  has  appointed,  and  had 
a  right  to  do  so.  There  is  no  contest  ]>etween  the  wife  and  other 
objects  of  the  power.  You  cannot  know  that  he  would  not  have 
partially  provided  for  his  wife  without  reference  to  the  fraudulent 
agreement.  As  far,  therefore,  as  he  has  provided  for  her,  the 
appointment  is  allowed,  to  stand.  This  is  no  fraud  upon  the  re- 
mainder-man. But  as  far  as  the  wife  is  really  not  to  benefit,  a 
burden  is  improperly  imposed  upon  the  remainder-man,  and  so  far 
he  is  properly  relieved  against  the  jointure. 

14.  The  point  decided  in  Daubeny  v.  Gockburn,  viz.   that  a 
fraudulent  appointment  to  one  of  several  objects  of  a  power,  is 
void  in  toto,  when  the  appointee  is  a  party  to  the  fraud,  came  be- 
fore the  Court  in  the  later  case  of  Farmer  v.  Martin,(o) 

[  *190  ]  and  the  Vice-Chancellor  set  aside  such  an  ^appointment, 
as  proceeding  upon  a  footing  which  in  a  court  of  equity 
is  always  held  to  vitiate  the  contract  altogether. 

15.  In  a  recent  case  in  Ireland,  where,  under  an  exclusive 
power,  the  estate  was  appointed  to  the  eldest  son,  in  order  to 
procure  him  to  join  with  his  father  in  securing  a  debt  of  the 

(o)  2  Sim.  511. 


CHILD,  PARTY  TO  FRAUD,  MAY  IMPEACH.         177 

lather's  on  the  estate,  which  he  accordingly  did,  and  the  equity 
of  redemption  was  immediately  relimited  to  the  father  for  life, 
remainder  to  the  son  for  life,  remainder  to  his  issue  in  strict 
settlement,  remainder  to  other  sons  of  the  marriage,  remainder 
to  the  father  in  fee.  Lord  Manners  treated  the  whole  transaction^ 
as  a  fraud  on  the  power.  The  appointment  in  favour  of  the  son 
was  made  for  the  purpose  of  enabling  him  to  join  in  securing 
the  father's  debts  upon  the  lands,  and  the  creditors  had  clear 
notice  of  the  fraud  committed  in  the  execution  of  the  power. 
He  therefore  set  aside  the  mortgage. (;?) 

16.  In  the  above  case,  the  estate,  in  default  of  appointment, 
was  limited  to  the  eldest  son,  his  heirs  and  assigns ;  so  that  if  no 
appointment  had  Ijeen  made,  he  would  have  taken  the  estate. 
The  father  lived  eight  years  after  the  appoiritment.  The  son 
died  within  a  few  mouths  after  his  father,  leaving  an  infant  heir, 
by  whom  the  bill  was  filed.  It  was  objected,  that  the  son,  being 
particeps  criminis,  the  plaintiff  deriving  through  him,  was  not 
entitled  to  relief,  and  that  length  of  time  was  also  an  objection  to 
the  relief  prayed.  But  Lord  Manners  decided  otherwise:  he 
observed,  that  it  was  impossible  to  say  that  the  son,  acting  under 
the  influence  of  parental  authority,  and  imposed  upon  as  he  had 
been  by  these  several  deeds,  drawn  in  the  same  office,  executed 
at  tlic  same  time,  and  perfectly  known  to  the  mortgagees,  had 
been  guilty  of  any  fraud  towards  them.  The  father,  armed  with 
parental  authority,  and  possessing  such  a  power  over  the  property, 
had  acfpiircd  an  irresistible  influence  and  dominion 
over  the  son,  which  he  used  and  exerted  to  *procure  [  *191  ] 
these  imi)rovident  deeds.  Was  not  this  oppression  ? 
Was  not  this  fraud  ?  And  had  not  the  mortgagees  notice  of  it  V 
As  to  the  acquiescence,  what  had  the  son  but  a  reversion  expect- 
ant on  his  father's  life-estate  ?  And  during  his  father's  life  he 
was  under  the  influence  of  the  same  authority,  and  could  not  be 
ex])ectcd  to  take  any  step  in  assertion  of  his  rights.     Then  had 

uch  a  length  of  time  elapsed  as  amounted  to  that  degree  of  laches 
which  should  pi'cvcnt  the  Court  from  interfering  ?  It  appeared 
that  l)oth  father  and  son  died   in  tlie  same  year,  within  a  few 

iionths  of  one  another  ;  during  the  fatlier's  lifetime  the  son  could 

(/«)  P.ilimT  V.  Wheeler,  2  B:ill  &  Beatty,  18.     See  Davis  v.  Uphill,  1  Swanst.  12'.); 
Rhodes  v.  Cook.  2  i^ini.  &  Stu.  488. 


178  SUGDEN   ON   POWERS. 

do  iiothiiii":  useful ;  and  lii.s  Loidsliip,  therefore,  could  not  say  that 
the  son  was  barred  by  aciiuiescence  ;  a  fortiori  length  of  time  did 
not  operate  against  the  plaintiff",  as  yet  a  minor. 

Now,  in  this  case,  the  son,  however  innocently,  was  a  party  to 
the  fraud,  and  yet,  being  the  only  remainder  man,  his  son,  claim- 
ing thruugli  him,  was  allowed  to  impeach  the  apj)ointment,  al- 
though, probably,  that  very  appointment  prevented  one  in  favour 
of  the  other  objects  of  the  power. 

17.  Where  an  a})pointnient  was  made  to  an  object  of  the 
power,  and  he  gave  bonds  to  several  other  persons  who  were  not 
objects  of  it,  to  secure  to  them  sums  of  money  ;  that  was  con- 
sidered as  suljstantially  and  in  effect  an  appointment  for  the  bene- 
fit of  the  strangers,  and  the  appointment  was  wholly  set  aside. (^) 

In  the  above  case,  the  settlement  in  which  the  power  was  con- 
tained was  a  voluntary  one,  and  the  persons  to  whom  the  bonds 
were  given  were  included  amongst  the  class  for  whom  the  settlor 
had  intended  to  provide  by  the  settlement ;  but  the  Court,  in  a 
suit  for  ascertaining  the  rights  of  the  parties  under  the  a]jpoint- 
ment,  refused  to  consider  whether,  in  a  suit  properly  framed,  the 
settlement  might  not  have  been  corrected. 

18.  In  all  these  cases  the  same  relief  would  be  administered 

even  against  a  purchaser,  if  he  had  notice  of  the 
[  *192  J  fraud ;  and  *even  if  he  had  not  notice  of  the  fraud, 

yet  if  he  has  not  the  legal  estate,  he  cannot  protect 
himself  in  equity.  The  payment  of  a  money  consideration  cannot 
make  a  stranger  become  the  object  of  a  power  created  in  favour 
of  children.  He  can  only  claim  under  a  valid  appointment  exe- 
cuted in  favour  of  some  one  of  the  children. (r) 

19.  This  is  a  point  which  daily  arises  in  jjractice.  The  parent 
first  sells  the  estate,  and  then  executes  an  appointment  to  one 
child,  in  order  to  enalde  him  to  make  a  title  ;  and  in  many 
instances  purchasers  are  justly  alarmed,  lest,  if  there  should  be 
any  underhand  agreement,  the  transaction  itself  would  be  deemed 
notice  of  the  fraud.  But  wlicre  the  money  is  paid  to  the  father 
and  son,  and  there  is  nothing  to  show  that  the  son  was  not  to 
receive  his  due  proportion  of  it,  the  purchaser  may  safely  corn- 
er) Lee  V.  Fernic,  1  Beav.  483. 

(r)  Per  Master  of  the  Rolls,  1  Mer.  038. 


BARGAIN   BETWEEN   PARENT  AND   CHILD.  179 

pletc  his  contract,  unless  he  actually  has  notice  of  some  under- 
hand agreement. 

20.  This  was  decided  in  the  late  case  of  M'Queen  v.  Farqu- 
har,(.s')  where  under  an  exclusive  power  of  appointment,  a  father 
appointed  to  one  son  in  fee,  and  then  the  father,  and  his  wife  and 
the  son,  joined  in  conveying  to  a  purchaser,  and  the  money  was 
expressed  to  be  paid  to  them  all.  The  title  was  objected  to  on 
the  ground  of  an  opinion,  by  which  it  appeared,  that  the  father 
first  sold  the  estate,  and  then  the  appointment  was  devised  to 
make  a  title,  and  the  purchase-deed  recited  that  the  contract  was 
made  with  the  father  and  son.  It  was  insisted,  that  if  the  father 
derived  any  benefit  from  the  agreement,  or  even  made  a  previous 
stipulation  that  his  son  sliould  join  him  in  a  sale,  which  there 
appeared  the  strongest  reason  to  apprehend,  it  would  have  been  a 
fraudulent  execution.  But  Lord  Eldon  overruled  the  objection, 
as  it  did  not  appear  that  the  estate  sold  for  less  than 

its  value,  or  that  the  son  got  less  than  the  value  *of  [  *193  ] 
his  reversionary  interest,  but  merely  that  he,  as  the 
owner  of  the  reversion,  acceded  to  the  purchase. 

21.  So  an  antecedent  bargain  between  the  father  and  child, 
that  if  the  appointment  were  made  the  fund  should  be  lent  to  the 
father,  although  on  good  security,  has  been  held  sufficient  to 
vitiate  the  appointment.  (^) 

Where  fraud  does  not  exist,  any  violence  of  feeling,  anger, 
resentment,  cannot  be  adverted  to  :  for  as  Lord  Redesdale  ob- 
served,(?/)  it  would  not  be  safe  to  advert  to  them.  There  would 
])e  no  end  of  such  oljjections,  if  they  were  to  be  admitted  as 
grounds  for  questioning  ai)pointments :  in  almost  all  [or  rather  in 
many  of]  these  cases,  where  there  has  been  an  inequality  in  the 
ap])(»intment,  something  of  that  kind  has  existed. 

23.  Li  Davis  v.  Uphill, (a:)  a  woman  who  had  survived  her 
husband  was  tenant  for  life  of  the  estate,  with  a  power  to  appoint 
the  remainder  to  the  children,  who  in  default  of  appointment 

(s)  M'Queen  v.  Farquhar,  11  Ves.jun.  467.  See  Doe  v.  Jackson,  1  Mood.  &  Rob. 
653;  Jackson  v.  Jackson,  7  Cla.  and  Fin.  977;  Campbell  v.  Home,  1  You.  &  Coll.  C. 
C.  6G1. 

(<)  Arnold  v.  Hardwicke,  7  Sim.  343. 

(u)  Vane  v.  Lord  Dungannon,  2  Scho.  &  Lef.  180,  131.  See  Supple  v.  Lowson, 
Ambl.  l-2'.K 

(i)  1  Swanst.  129. 


180  SUGDEN   ON   POWERS. 

took  the  estate  under  tlie  settlement,  and  by  arrangements  with 
all  the  children  she  a])pointcd  the  estates  amongst  them,  and  it 
seems  gave  up  possession  of  ])art,  and  the  remainder  was  limited 
to  her  for  life  vUhoul  inijiedc/imcnt  of  ivaste,  and  a  recovery  was 
sulVered  to  make  good  the  arrangement.  It  was  insisted  that  this 
was  a  benefit  obtained  as  the  condition  of  an  execution  of  the 
power,  and  therefore  void  in  e(iuity.  Lord  Eldon  thought,  that 
even  if  the  final  arrangement  could  be  considered  only  as  an  exe- 
cution of  her  power,  there  was  considerable  reason  for  contend- 
ing that  the  arrangement  might  be  supported.  If  the  title  was  to 
stand  upon  the  recovery  she  enabled  them  to  suffer,  and  not  exe- 
cution of  power,  there  seemed  no  valid  objection  in  equity  to  her 
bargaining  as  to  the  terms  on  which  she  would  join  in  a  recovery  ; 

and  indeed  the  same  observation  might  apply  if  it  was 
[  *104  ]   to  be  considered  as  a  mixed  transaction  *of  execution 

of  power  and  recovery,  as  it  seemed  to  him  that  if  her 
joining  in  a  recovery  wa§  required  by  the  fiimily  to  ascertain  their 
own  rights,  she  might  be  allowed  to  judge  on  what  terms  she 
would  join.  He  had  not  met  witli  any  case  where  in  an  arrange- 
ment settling  the  interests  of  all  the  branches  of  a  fiimily,  it  had 
been  held  that  children  may  not  contract  with  each  other  to  give 
to  a  parent  who  had  a  power  to  distribute  property  among  them, 
some  advantage  which  the  parent  without  their  contract  with 
each  other  could  not  have. 

24.  And  here  we  may  refer  to  the  rule,  that  a  parent  having  a 
power  to  fix  the  time  when  portions  are  to  be  raised,  cannot  ap- 
point an  immediate  portion  to  an  infant  not  in  want  of  it,  with  a 
view  to  become  entitled  to  it  himself,  as  her  personal  representa- 
tive, in  case  of  her  death. (t/) 

25.  Where  a  party,  taking  under  a  power,  has  notice  of  an 
agreement  for  valuable  consideration  not  to  execute  the  power,  or 
of  what  is  tantamount  to  sucli  an  agreement,  equity  Avill  relieve 
against  the  execution.  Thus,  in  the  case  of  Scrope  v.  Oniey,(3^)(I) 
a  tenant  for  life  witli  a  power  of  jointuring,  conveyed  the  estate 

{y)  1  Bro.  C.  C.  305;  11  Ves.  jun.  479;  1  Russ.  &  Myl.  436.  As  to  ,the  general 
rule,  vide  infra. 

(z)  4  Bro.  P.  C.  237.     See  2  Atk.  567;  2  Burr.  1145. 

(I)  In  Barnard's  Rep.  Cha.  112,  it  is  said  that  the  covenant  in  this  case  was  con- 
strued to  be  a  release.     But  however  this  may  be  the  principle  in  the  text  is  clear. 


BARGAIN  BETWEEN  PARENT  AND  CHILD.  181 

on  his  marriage,  as  if  he  were  seised  in  fee,  and  covenanted 
against  incumbrances  done  or  to  be  done.  He  afterwards  married 
a  second  wife,  and  after  marriage  limited  a  jointure  to  her  by 
virtue  of  his  power,  she  having-  notice  of  the  first  settlement : 
and  Lord  Chancellor  King  relieved  against  the  execution  of  the 
power,  at  the  suit  of  the  issue  of  the  first  marriage,  and  his 
decree  was  affirmed  in  the  House  of  Lords. 

*26.  In  the  case  in  Ireland, («)  the  L.  C.  in  discuss-  [  *195  ] 
ing  the  right  to  set  aside  void  leases  granted  under  a 
power,  observed,  that  he  did  not  touch  a  case  of  this  sort — a  void 
lease  by  a  tenant  for  life  under  a  power  at  an  inadequate  rent, 
and  then  a  sale  of  the  estate  under  a  power  of  sale  in  the  same 
settlement,  at  a  price  in  proportion  to  the  rent  reserved:  in  such 
a  case  there  was  nothing  to  affect  the  right  of  the  remainder-man 
to  set  aside  not  only  the  lease  but  the  sale.  The  purchaser  knew 
that  there  were  leases,  and  ought  to  have  ascertained  the  terras 
of  them,  and  not  to  have  paid  his  money  for  the  estate  without 
doing  so.  This  observation  was  made  in  a  case  where  the  in- 
adequacy of  rent  was  apparent,  and  it  must  be  confined,  to  such 
a  case,  for  certainly  a  purchaser  under  a  settlement  cannot  be 
required  to  see  that  the  best  rent  was  reserved  upon  every  lease 
of  the  estate. 

27.  But  the  most  remarkable  instance  of  the  interference  of 
(■quity  remains  to  be  stated,  although  it  is  properly  a  case  of 
construction.  The  precedent  was  established  by  Lord  Keeper 
Wright,  in  the  case  of  Chadwick  v.  Doleman.(^)  A  power  was 
iiiven  to  a  parent,  tenant  for  life,  to  appoint  a  sum  of  money  for 
younger  children's  portions,  to  be  raised  after  his  death,  which  in 
default  of  appointment  was  to  be  equally  divided  amongst  them, 
ind  the  estate  itself  was  settled  on  the  first  and  other  sons  in  tail. 
There  being  several  younger  children  of  age,  the  father  appointed 
the  money  amongst  them,  and  gave  a  i)articular  sura  to  his  second 
son,  who  was  of  age,  and  under  a  treaty  of  marriage.  The  son 
afterwards  became  eldest  son,  and  as  such  entitled  to  the  estate 
itself,  and  tliercupon  the  father  made  a  new  appointment  of  the 
portion  given  to  him.     The  Lord  Keeper  admitted  that  the  sec- 

(a)  Muskerry  v.  Chinnery,  Llo.  &  Goo.  Rep.  t.  Sugd.  218,  219. 

(b)  2  Vera.  628.    See  Driver  v.  Traak,  3  Mau.  Sc.  Selw.  25;  Wiadham  v.  Graham, 
1  Russ.  331. 

Vol.  II.  16 


182  SUGDEN   ON   POWERS. 

end  son,  at  the  time  of  the  ajipointmenl,  was  a  person  capable 
to  take,  and  was  a  younger  child  witliin  the  power 
[  *19G  ]  *of  appointing ;  but  was  of  opinion  that  this  was  a  de- 
feasible ap])ointnient  (as  lie  was  pleased  to  tenn(I)  it,) 
not  from  any  jtower  of  revoking-,  or  u])on  the  words  of  the  ap- 
pointment, but  fi-om  the  capacity  of  the  person.  He  was  a  person 
capable  to  take  at  the  time  of  the  ajjpointment  made,  but  tliat 
was  sub  mo(h),  and  ui)on  a  tacit  or  implied  condition  that  he 
should  not  afterwards  hapjjen  to  become  the  eldest  son  and  heir ; 
so  that  he  had,  as  it  were,  only  a  defeasible  capacity  in  him  :  and 
he  decreed  accordingly.  He  added,  that  although  the  appoint- 
ment had  been  made  in  consideration  of  marriage,  it  would  have 
been  the  same  thing. 

28.  Lord  Talbot  appears  to  have  approved  of  the  foregoing  de- 
cisions ;(c)  and  in  a  case  before  Lord  Hardwicke,  (^/)he  entirely 
adopted  it.  He  said,  that  Lord  Cowper  [</«.  Wright]  went 
plainly  on  this  ;  he  (Lord  Cowper)  found  it  established  by  the 
precedents  and  authorities  of  this  Court,  that  the  words, "  j'ounger 
children"  had  received  a  prodigious  latitude  of  construction  to 
answer  the  occasions  of  families  and  intent  of  the  parties,  often 
construing  an  eldest  daughter  to  be  a  younger  child,  that  is,  carry- 
ing the  words  very  much  out  of  the  natural,  into  a  foreign  and 
remote  sense,  to  answer  the  intent :  and  he  found  it  determined, 
that  an  only  daughter  thougli  not  younger  in  comparison  than 
another,  should  be  considered  as  a  younger  child  wlicre  a  provi- 
sion was  made  for  the  younger  children,  and  no  other  provision, 
and  the  estate  limited  to  go  over  ;  and  there  have  \>een;  cases 
where  a  younger  son  becoming  an  eldest,  under  certain  circum- 
stances, has  been  considered  as  an  eldest,  to  exclude  him  from  the 
benefit  of  the  portion  ;  and  therefore  the  rule  laid  down 
[  *19T  ]  by  Lord  Hardcourt,  in  Beal  v.  Beal,(e)  has  been,  *that 
younger  children  shall  be  considered  such  as  do  not  take 
the  estate,  are  not  the  head  and  representative  of  the  family : 
Lord  Cowper  having  found  this,  from  thence  inferred  a  tacit  con- 

(c)  See  Jermyn  v.  Fellows,  For.  03. 

(d)  Tcynham  v.  Webb,  2  Ves.  198. 

(e)  1  P.  Wms.  451. 

(I)  This  is  the  expression  of  Vernon,  the  Reporter,  from  which  it  should  seem  that 
he  did  uot  approve  of  the  decision. 


OF  MARRIAGE  BROKAGE.  183 

dition,  that  the  capacity  of  being  a  younger  son  should  continue 
until  the  time  of  payment  came,  and  therefore  made  that  determi- 
nation, though  the  father  had  actually  executed  his  power.  Taking 
it  in  abstracto,  merely  as  an  execution  of  a  power,  it  could  not 
possibly  be  maintained  upon  the  general  rules  ;  but  the  ground 
Lord  Cowpcr  went  on  was,  that  the  continuing  of  the  capacity  to 
the  time  of  the  provision  taking  effect  in  point  of  payment,  was 
a  tacit  or  implied  condition  going  along  with  the  appointment. 

29.  Lastly,  if  a  power  be  exercised  in  consideration  of  the  ap- 
pointee procuring  a  marriage  between  the  person  executing  the 
power  and  another  person,  the  execution  will  be  set  aside. (/) 

30.  And  in  such  a  case,  the  representatives  of  the  tenant  for 
life  are  not  permitted  to  avail  themselves  after  his  death  of  the  in- 
terest created,  but  it  will  be  wholly  set  aside  for  the  remainder- 
man. Thus  in  Stribblcliill  v.  Brett,  the  party  who  married  was 
tenant  for  life,  with  remainder  to  his  son  in  strict  settlement,  and 
had  a  power  of  leasing  at  an  old  rent,  and  the  lease  actually 
granted  was  for  ninety-nine  years  determinalile  upon  lives,  at  a 
rent  of  5/.,  and  for  a  consideration  expressed  of  3,650/.,  but  the 
consideration  really  was  the  procuring  of  the  marriage.  The  bill 
was  filed  l)y  a  lessee  who  claimed  under  the  remainder-man  after 
the  decease  of  the  tenant  for  life  without  issue  ;  and  it  was  insist- 
ed that  he  was  not  entitled  to  controvert  the  lease,  for  he  did  not 
claim  under  or  in  privity  to  the  lessor,  who  was  but  tenant  for 
life,  but  under  a  remainder-man,  and  that  if  *the  leasfe 

was  a  trust,  it  would  belong  to  the  executor  of  the  ten-  [  *198  ] 
ant  for  life  :  but  the  lease  was  ordered  by  the  Lords  to 
be  delivered  up  to  be  cancelled.  But  this  relief  is  confined  to 
equity,  and  it  must  be  admitted  that  originally  it  was  a  question 
of  nicety,  whether  as  the  tenant  for  life  had  actually  granted  the 
lease,  and  had  power  to  do  so  witliout  any  consideration,  the  effect 
of  the  illegal  consideration  ought  not  to  have  been  to  vest  the  in- 
terest in  himself. 

(/)  Stvibblehill  v.  Brett,  Prec.  Cha.  165;  2  Vern.  445,  reversed  in  Dom.  Proc. ; 
4  Bro.  P.  C.  144,  Toml.  ed.  nom.  Scriblehill  v.  Brett.  See  1  Fonbl.  book  1,  cli.  4,  9. 
10,  and  notes;  Willinrason  v.  Gihon,  2  Scho.  &  Lef.  357. 


184 


SUGDEN   ON   POWERS. 


[    *109   ] 


^CIIAPTKR  XII. 


HOW   ESTATES   GO    IN    DEFAULT   OF    OR    WHERE    THERE    IS   A   BAD 
APPOINTMENT. 


SECTION  I. 


OF  LIMITATIONS  IN   DEFAULT   OF   APPOINTMENT. 


10. 
11. 
12. 

13. 

21. 

14. 

•18. 
17. 
19, 
20, 


Estates  in  default  of  appointment, 

vested. 
Gifts  by  implication  in  default  of  ap- 
pointment. 
Gifw  accelerated  where  power  void. 
General  power  and  general  gift  in 
default  of  appointment,  restrained 
by  intention. 
"  In  default  thereof,"  where  it  refers 

to  appointment. 
In  default  of  joint  appointment,  a 
power  to  survivor,  whether  both 
can  be  exercised. 
Separate  gifts  including  the  same  ob- 
jects. 
Fund  vested  at  twenty-one,  yet  prior 

power  remains. 
Of  appointments  to  surviving  chil- 
dren, with  reference  to  vested  in- 
terests. 
^  Amongst,  creates  a  tenancy  in  com- 
V    mon  in  a  gift  from  a   power,   by 
5    implication. 

^  Issue  of  a  child,  although  objects  of  a 
>    power,  may  only  talie  by  substitu- 
)    tion  if  no  appointment. 
Longmorc  v.  13room. 
Tiien,  where  an  adverb  of  relation. 
Power  and  gift  over  con6ned  to  the 
same  to  objects  on  a  contingency. 


Folkes  V.  Western :  e  ftect  of  advance- 
ment. 
Pitt  V.  Jackson,  contra. 

>  Observations  on  the  cases. 

Operation  of  common  clause  in  settle- 
ments as  to  advancements. 

>  Noel  V.  Lord  Walsingham. 

Father   may   keep    portion   on   foot 

upon  advancement. 
Duke  of  Briilgewater  v.  Egerton. 
Where  appointee  of  part  is  entitled  to 

a  share  of  residue. 

>  Where  appointment  is  in  full  of  share. 

A  donee  of  a  power  may  take  under 

a  general  description,  in  default  of 

appointment. 

Gift  to  one  for  life  with  a  power;  in 

default  to  executors,  &c  ,  property. 

Part  badly  afjpointed  goes  as  in  de- 
fiult  of  appointment. 

Power  not  controlled  by  gift  in  de- 
fault of  appointment. 

Where  a  power  is  confined  to  a  de- 
fault of  previous  limitation. 

Mistake  in  settlement  corrected  :  in 
defiult  of  appointment  instead  of 
issue. 


1.  "We  have  already  had  occasion  to  consider  the  cflect  of 
the  creation  of  a  power  on  the  estates  limited   in  default  of 


LIMITATIONS   IN   DEFAULT   OF   APPOINTMENT.  185 

*appointment,(a)  and  we  have  seen  that  whether  the  [  *200  ] 
estate  be  real  or  personal,  and  whether  the  power  be 
merely  to  distribute  and  fix  the  shares,  or  to  select  and  exclude 
any  of  the  olijects  of  a  class,  and  whether  the  power  be  general 
or  special,  the  limitations  in  default  of  appointment  are  vested, 
subject  to  be  divested  by  the  exercise  of  the  power,  but  that  such 
a  power  will  prevent  the  parties  from  being  entitled  to  a  transfer 
of  tlic  property,  although  they  do  take  vested  interests. 

2.  We  have  also  had  occasion  to  consider  in  what  cases  the 
objects  take  in  default  of  appointment,  although  there  is  no 
express  substantive  gift  to  them  in  that  event,(6)  and  we  have 
seen  that,  speaking  generally,  where  the  fund  is  in  esse,  and  the 
intent  is  to  provide  for  the  objects  of  the  power,  a  power  to 
appoint  the  fund  amongst  them  is  in  the  nature  of  a  trust,  which 
ought  to  be  executed,  and  therefore  amounts  by  implication  to  a 
gift  of  the  fund  to  the  objects  of  the  power,  in  default  of  its  being 
appointed  to  thene.. 

3.  So  we  have  seen  the  eiTect  of  an  appointment  in  taking  a 
fund  wholly  out  of  the  settlement, (c)  and  have  considered  the 
cases  where  powers,  either  original((/)  or  delegated,(e)  which 
happen  to  be  void  in  their  creation  do  not  defeat,  but  accelerate 
the  gifts  in  default  of  appointment. 

4.  It  will  in  this  Chapter,  therefore,  only  be  necessary  to  state, 
1.  A  few  cases  which  have  arisen  on  particular  limitations  in 
default  of  appointment,  and  2.  To  show  how  estates  go  where 
there  is  a  bad  appointment.     As  to  the  former : 

5.  A  general  power  of  appointment  may  be  cut  dowi  to  par- 
ticular objects  by  reason  of  a  gift  over  to  them  in  default  of 
appointment ;(/)  and  by  parity  of  reason^  a  general  gift  over  in 
defaul^  of  appointment  may,  in  favour  of  the  intention, 

*bo  restrained  to  the  objects  to  whom  an  appointment  [  "201  ] 
might  have  been  made.(g') 

(a)  Vide  supra,  ch.  8,  sect.  1. 

(6)  Vide  supra,  ch.  10,  sect.  6. 

(c)  Supra,  p.  20. 

{d)  Supra,  p.  2. 

(e)  Supra,  p.  67. 

(/)  Vide  supra,  vol.  1,  p.  530. 

(g)  Vide  supra,  vol.  1,  p.  541. 

16* 


18G  SUGDEN   ON   POWERS. 

(').  In  Pritchard  v.  Quincliaiit,  and  JtMikins  v.  Quinchant,(/t) 
the  ^vife's  estate  was  settled  after  marriage  to  snch  uses  as  the 
husl)and  and  wife  shoidd  jointly  appoint,  and  in  default  of  appoint- 
ment to  themselves  for  life,  remainder  to  tlie  use  of  their  children 
in  such  shares,  <fcc.,  manner  and  form  as  the  husband  by  deed  or 
will  should  appoint,  and  in  defmiU  thereof^  to  the  hus))and  in  fee. 
Lord  llardwickc  said,  the  only  question  was  upon  the  words 
"  in  defoult  thereof"  of  isBue  or  appointment ;  if  the  latter,  the 
issue  are  to  take  nothing  if  he  makes  no  appointment.  The  plain- 
tiff says  the  latter  is  an  unreasonable  and  unnatural  construction 
of  the  mother's  intention.  Upon  the  deed,  which  was  inter  vivos 
and  of  legal  limitation,  the  words  of  it  must  prevail.  He  was 
much  disinclined  to  do  it,  but  he  must  be  of  opinion  that  it  meant 
in  dcfauH  of  appointment.  If  any  estate  had  vested  without 
•appointment,  he  should  have  l3cen  of  a  different  opinion ;  but 
there  were  none ;  it  was  only  to  the  child  he  appoints.  Thereof 
must  refer  to  some  act  described  before  the  appointment. 

7.  In  Simpson  v.  Paul,(i)  as  wo  have  seen,  where  a  fund  was 
settled  to  be  divided  between  the  children  in  such  shares  and 
proportions  as  the  husband  and  wife  during  their  joint  lives,  or 
in  default  thereof,  the  survivor  of  them,  should  appoint,  with  a 
trust  for  the  children  equally  in  default  of  such  appointment,  and 
the  father  and  mother  appointed  a  third  of  the  fund  to  a  daughter 
upon  her  marriage  as  her  share  of  the  fund.  Lord  Northington 
held  that  the  wife,  as  survivor,  could  not  increase  the  share.  He 
said  the  question  depended  on  what  was  the  intent  of  the  parties 
creating* a  power,  viz.  whether  after  a  partial  execution  by  baron 
and  feme  of  an  original  power,  a  secondary  power,  to 
[  *202  ]  arise  in  *dcfault  of  the  execution  of  the  original  power, 
could  have  any  effect ;  and  he  was  of  opinion  that  a 
partial  execution  of  an  original  power  like  the  present,  respecting 
the  appointment  of  portions  among  children,  would  prevent  the 
secondary  power  given  to  tlie  survivor  from  taking  place.  He 
•thought  that  as  the  husband  and  wife  had  taken  up  the  execution 
'Of  the  joint  power  in  part,  they  had  thereby  brought  into  life  that 
power,  on  the  deadncss  of  which  the  other  was  to  arise ;  not  that 

{h)  Ambl.  147;  5  Ves.  jun.  596,  n.     See  Doe  v.  Perryn,  3  Term  Rep.  484;  Rex  v. 
Marquis  of  Stafford,  7  East,  521. 
,(i)  2  Coz,  34,  supra. 


LIMITATIONS  IN  DEFAULT  OP   APPOINTMENT.  18T 

the  husband  meant  to  bind  himself  by  this  partial  execution,  so  as 
to.prevcnt  a  further  joint  execution  if  his  children  should  require 
it.  But  that  he  considered  it  as  the  whole  of  that  daughter's 
fortune,  appeared  by  the  expression,  which  was  not  her  part,  but 
her  share,  which  showed  he  considered  himself  as  executing  his 
power  of  allotting  the  shares  among  his  children,  atid  if  no  future 
■allotment  teas  made  bi/  him,  that  the  fund  should  be  shared  equally 
amongst  his  three  children.  He  relied  in  proof  of  this  upon 
expressions  in  the  husband's  will,  and  added,  that  it  would  be 
•dangerous  to  say,  when  a  father  on  the  proposal  of  a  daugliter's 
marriage  sees  it  necessary  to  exercise  his  power  by  allotting  her 
her  fortune  or  share,  without  going  further  as  to  the  other  chil- 
dren till  a  like  occasion  calls  for  it,  that  he  thereby  leaves  the 
remainder  to  be  partially  distributed  by  his  ividovj.  It  was  un- 
reasonable to  suppose  he  intended  it,  and  it  was  derogatory  to  the 
dignity  of  the  marriage  state  to  allow  the  wife  to  control  the 
intent  of  her  husband  relating  to  a  provision  for  his  children.  If 
it  had  been  so  intended  it  might  have  easily  been  so  expressed,  in 
default  of  appointment  q/"  a//  or  any  part,  then,  as  to  ivliat  remained 
unappointed,  to  be  subject  to  the  power  of  the  survivor ;  but  that 
not  being  the  case  here,  the  appointment  was  void. 

8.  Now  the  Court  was  not  at  liberty  to  look  at  the  husband's 
will  in  order  to  ascertain  what  the  intention  was,  nor  to  take  into 
account  the  dignity  of  the  marriage  state.  The  simple 
question  was,  did  the  power  to'  the  survivor  *arise  ?  [  *203  ] 
The  only  judicial  ground  relied  upon  was,  that  the  power 
to  the  survivor  was  not,  in  default  of  a  joint  appointment  of  all  or 
any  part,  to  the  survivor  to  appoint  what  remained  unappointed ; 
but  it  seems  to  be  clear  that  the  law  is  otherwise,  and  that  the 
words  in  question  are  included  in  the  general  terms,  in  default  of 
such  ap|)ointment,  although  where  those  words  are  introduced  it 
may  be  strong  to  shoW|that  not  merely  the  legal  effect  of  the 
power,  l)ut  the  intention  of  the  settlors,  was  that  there  might  be 
partial  appointments.  (A;)  Lord  Northington  indeed  held,  what 
at  first  is  not  very  apparent,  that  by  the  partial  exercise  of  the 
power  in  favour  of  one  child,  although  the  joint  power  might  be 
further  exercised,  yet  the  power  to  the  survivor  was  altogether  at 
an  end,  for  the  wife  appointed  a  much  smaller  portion  to  the  sons 
(/c)  See  2  Ves.  jun.  356. 


188  SUGDEN   ON   POWERS. 

than  to  each  of  the  two  daughters,  and  the  appointment  was 
wholly  set  aside.  This  clearly  cannot  be  maintained.  If  even 
the  execution  of  the  Joint  j)o\ver  prevented  an  exercise  of  the  sole 
power  in  favour  of  the  same  ohject,  yet  as  to  the  other  objects  the 
power  must  have  remained  unaffected  over  the  residue  of  the  fund. 

9.  Tlic  real  question  in  the  cause  perhaps  was,  whether  the 
joint  appointment  ))y  the  husband  and  wife  to  the  daughter  of  a 
third  as  her  share,  and  the  release  by  the  daughter  and  her  hus- 
band, did  not  operate  as  a  full  execution  in  favour  of  that  daughter 
so  as  to  prevent  either  the  husband  or  wife,  as  the  survivor,  from 
altering  what  both  had  solemnly  settled  under  the  first  power. 
But  this  point  depends  not  upon  the  question  whether  a  partial 
joint  appointment  altogether  prevents  the  sole  power  from  rising, 
but  upon  the  intent  of  the  parties  in  jointly  executing  the  first 
power,  coupled  in  effect  with  a  contract  by  the  child  advanced 
not  to  accept  any  more  of  the  fund. 

10.  Of  course  although  the  objects  of  a  prior  gift  may  not  live  to 
take  under  it,  yet  if  they  answer  the  description  of  a  class  in  the 

gift  over,  they  will  become  entitled.  Therefore,  under 
[  *204  ]  *the  common  trusts  in  a  settlement  for  the  children  to 

be  vested  at  twenty-one,  and  in  case  none  should  attain 
that  age,  then  in  trust  for  the  brothers,  &c.,  of  the  wife,  as  she 
should  appoint,  and  in  default  of  appointment  in  trust  for  her  next 
of  kin  ;  the  children  maj'-  take  under  the  last  limitation,  although 
they  all  die  under  twenty-one. (/) 

11.  "Where  a  power  is  given  to  a  tenant  for  life  to  appoint  to 
his  children,  and  in  default  of  appointment  the  fund  is  given  to 
the  children  at  a  particular  age,  as  at  twenty-one,  although  it  is 
expressly  declared  that  if  any  child  shall  attain  twenty-one  in 
the  life  of  its  parent,  his  share  shall  be  considered  as  a  vested 
interest,  subject  to  the  life-estate,  yet  that  provision  will  only 
relate  to  nnappointed  shares,  and  the  power  will  not  be  defeated 
by  the  children  attaining  twenty-one  before  it  is  exercised  ;  nor 
will  it  give  them  vested  interests  at  that  age  in  what  may  have 
been  actually  appointed  to  them.(w)  This  was  decided  by  Lord 
Thurlow,  and  the  point  has  always  been  considered  as  well  de- 

(/)  Withy  V.  Mangles,  4  Beav.  358. 

(m)  Boyle  v.  Bishop  of  Peterborough,  1  Ves.  jun.  299;  and  see  particularly  p.  309. 
Butcher  v.  Butcher,  1  Ves.  &  Bea.  79. 


POWER  NOT   AFFECTED   BY   VESTING.  189 

cided.  In  a  late  case  before  Lord  Eldon  the  point  was  agitated, 
and  he  said  that  he  would  not  disturb  the  case  before  Lord  Thur- 
low  :  Lord  Eldon  said,  that  tlie  question  was,  what  is  the  law  at 
this  day,  as  to  the  due  mode  of  executing  a  power  of  appoint- 
ment by  a  parent  among  all  the  children,  to  be  executed  at  any 
time  up  to  the  death  of  the  parent,  even  by  deed  or  will,  where 
some  of  the  children  are  dead  before  any  appointment.  After 
adverting  to  the  doctrine,  that  an  appointment  cannot  be  made  to 
a  deceased  child,  or  the  representatives  of  a  deceased  child,  he 
observed,  that  the  mode  of  executing  the  power  in  the  case  of  a 
deceased  child,  according  to  the  old  practice  of  conveyancers, 
that  prevailed  before  the  case  of  Boyle  v.  The  Bishop  of  Peter- 
borough, was  by  giving  part  to  the  surviving  children,  making  no 
appointment  of  the  residue,  which  therefore  was  per- 
mitted *to  go  as  in  default  of  a|tpointmcnt.  That,  [  *205  ] 
certainly,  was  very  ill-conceived,  and  incorrect ;  the 
consequence  was,  that  as  in  most  cases  tlie  share  unappointed 
would  go  among  all  who  attained  twenty-one,  living  and  dead,  as 
property  vested  in  them  at  that  age,  or  on  marriage  of  daughters 
it  would  be  divisible  among  a  child  surviving,  and  all  those  who 
were  dead  ;  but  it  is  very  difficult,  almost  impossible,  to  speak  of 
that  sort  of  device  as  an  appointment.  Lord  Thurlow  dissented 
from  that  which  he  (Lord  Eldon)  understood  to  have  been  the 
previous  notion  of  conveyancers,  and  established  the  rule  in  that 
case  of  Boyle  v.  The  Bishop  of  Peterborough. 

12.  The  mode  above  alluded  to  was  a  mode  of  executing  the 
intention  through  the  medium  of  the  power.  It  is,  as  we  shall 
see,  firmly  settled,  that  unless  there  is  a  provision  to  the  contrary, 
the  unappointed  part  goes  to  all  the  objects  under  a  gift  in  de- 
fault of  appointment,  including  those  to  wliom  part  has  been  ap- 
pointed. It  is  settled,  that  the  donee  may  defeat  the  gift  in  de- 
fault of  api)ointment  by  appointing  to  a  surviving  child  ;  but  he 
may  not  wish  to  wholly  defeat  the  gift  over,  and  yet  be  desirous 
to  make  an  ineciuality.  Thus,  under  a  common  power  to  appoint 
to  children,  with  a  gift  to  them  in  default  of  appointment  at 
twenty-one  ;  sujipose  tliere  to  be  three  children,  and  two  attain 
twenty-one,  and  then  die,  here,  subject  to  the  execution  of  the 
power,  tlie  personal  representative  of  each  of  the  deceased  chil- 
dren is   entitled  to  a  third.      The   donee  cannot  increase    the 


1*J0  SUGDEN   ON   POWERS. 

share  by  an  appointment,  because  the  representatives  arc  not 
objects  of  the  power,  but  he  may  increase  tlie  share  of  the 
surviviiii:;  cliild  by  api)ointin<2;  a  portion  lo  liim,  and  of  course 
leavinii;  him  to  participate  in  the  residue  e(iually  with  the  repre- 
sentatives of  the  deceased  children.  Where  there  is  the  usual 
provision  that  appointed  shares  shall  be  brought  into  hotch-pot, 
the  douce  may  appoint  to  the  surviving  child  more  than  his  share 
upon  an  equal  division  ;  in  which  case,  of  course  he  will 
f  *20G  ]  not  claim  any  portion  of  the  'residue,  but  will  sutler  it 
to  go  to  the  representatives  of  the  deceased  children. 
In  one  case  an  appointment  was  made  to  surviving  children,  with 
a  proviso,  that  if  any  appointee  claimed  any  part  of  the  share 
unappointed,  the  appointed  share  should  be  brought  into  hotch- 
pot, (m) 

13.  We  have  seen  that  a  mere  })owcr  in  words  may  im])ly  an 
absolute  gift  to  the  oI)jects  in  default  of  appointment.  Where 
this  is  the  case,  and  no  appointment  is  made,  it  frequently  becomes 
a  question  whether  the  objects  take  as  tenants  in  common,  or  as 
joint  tenants.  In  Maddison  v.  Andrew(o)  the  fund  was  to  be 
disposed  of  to  and  amongst  the  testator's  daughters  as  his  wife 
should  appoint.  It  was  not  necessary  to  decide  the  point ;  but 
Lord  Ilardwicke  expressed  his  Oi)iuion  that  the  bequest  was  Joint. 
But  in  a  case  before  Lord  Rosslyn,  where  the  devise  was  to  A.  in 
trust,  to  give,  <fec.,  the  estate  unto  and  amongst  his  children  as  he 
should  appoint,  he  held  it  to  be  a  tenancy  in  connnon  ;(p)  and,  in 
a  similar  case,  Sir  William  Grant,  Master  of  the  Rolls,  followed 
that  case  as  an  autliorit3'",(^)  and  decided  accordingly. 

1-4.  In  the  case  of  Ruutledge  v.  Dorril  there  was  a  gift  in  de- 
fault of  appointment,  to  the  children,  grandchildren,  or  issue 
generally  of  the  marriage,  living  at  the  decease  of  the  survivor 
of  the  husband  and  wife,  with  a  proviso,  that  in  case  of  no  ap- 
pointment the  issue  of  any  child  dead  should  not  have  a  greater 
share  than  his  parent,  if  living,  would  have  been  entitled  to  ;  and 
Lord  Alvanley  determined,  that  althougli  the  children  of  a  living 

(n)  Cunynghame  v.  Thiirlow,  1  Russ.  &  Myl.  436,  n. 
(o)  1  Ves.  57. 

(p)  Reade  v.  Reide,  5  Ves.  jun.  744. 

(9)Ciisterton  v.  Sutherland,  5  Ves.  jun.  445;  and  soc  Fowler  v.  Hunter,  3  Vou.  & 
Jerv.  506. 


ISSUE  IN  COMPETITION  WITH   CHILDREN.  191 

parent  might  have  had  shares  appointed  to  them  under  the  power, 
and  not  being  made  objects  of  it,  if  their  parent  had  been  dead 
they  Avoiild  haA'e  taken  his  share  ;  yet  as  he  was  alive,  it  was 
impossible  to  hold  that  a  child  of  a  living  parent  could 
take  any  share,  *thougli  it  was  clear  that  they  might  [  *207  ] 
have  been  made  suljstantive  objects  of  the  appoint- 
ment  ;(r)  and  this  case  was  followed  in  a  subsequent  case  before 
Lord  Kenyon,  sent  out  of  the  Court  of  Chancery,(.*r)  the  certifi- 
cate of  the  Judges  in  which  case  was  confirmed  by  the  Lord 
Chancellor,  on  the  18th  December,  1802.    -^ 

15.  And  here  it  may  be  remarked,  that  a  gift  to  children  in 
default  of  appointment  is  not  confined  to  those  only  who  are  alive 
at  tlic  death  of  their  parent,  to  whom  the  power  is  given,  although 
the  power  is  to  ajjpoint  only  by  will,  but  all  the  children  take 
vested  interests  upon  their  birth,  subject  to  be  divested  by  the 
execution  of  the  power  ;  and  therefore  the  share  of  a  child  in  the 
lifetime  of  his  parent  will,  in  default  of  appointment,  go  to  its 
representative.  And  the  same  rule  would  prevail  as  to  other  ob- 
jects. (O 

16.  But  where  there  is  only  one  direction,  which  includes  ex- 
pressly the  power  to  appoint,  and  by  implication  the  gift  in  de- 
fault of  appointment,  those  only  can  take  in  default  of  appoint- 
ment who  could  have  taken  under  the  power ;  and  consequent- 
ly if  the  power  is  confined  to  a  will,  the  objects  to  take  must  be 
living  at  the  death  of  the  donee  of  the  power.  (?<) 

17.  In  a  case,  where  the  gift  by  will  was  to  trustees  to  dispose 
of  the  fund  amongst  the  testator's  brothers  and  sister,  or  their 
children,  in  such  shares  and  proportions,  and  at  such  time  or  times 
as  the  trustees  should  think  proper.  Sir  W.  Grant  held,  that  they 
might  have  elected  to  whom  the  fund  should  go,  the  parents  or 
the  children.  ]]ut  the  power  not  having  been  executed,  the  Court 
had  not  that  discretion,  Ijut  had  only  to  say  what  class  was  to 
take,  and  then  the  distribution  must  bo  equal.     The 

fund  was  given  *by  the  decree  to  the  parents  and  all  [  *208  ] 

(r)'  Routledge  v.  Dorril,  2  Ves.  jun.  357. 

(s)  Legard  v.  Haworth,  1  East,  120.  See  Longmorc  v.  Broom,  7  Ves.  jun.  124; 
Fox  y.  Gregg,  App.  No.  23. 

(0   Vanderzee  y.  Aclom,  4  Ves.  jun.  771;  Heron  y.  Stokes,  2  Dru.  &  War.  89. 
(u)  Woodcock  V.  Renneck,  4  Beav.  190. 


192  SUGDEN   ON  POWERS. 

the  cliiklrcn  living-  at  the  testator's  death,  and  the  rcpreseutative 
of  such  as  had  since  died  per  capila.(x') 

18.  And,  as  we  shall  hereafter  see,  a  direction  that  children 
shall  stand  in  the  place  of  their  parents,  although  following  a 
gift  ill  default  of  a])pointnient,  may  be  so  strongly  worded  as  to 
make  the  children  of  a  deceased  parent  objects  of  the  power,  as 
well  as  legatees  in  default  of  appointment. (//) 

11*.  In  Harrington  v.  Jlarte(c)  the  testatrix  gave  the  fund  as 
her  daughter  should  appoint.  In  default  of  appointment  her 
daughter  to  receive  the  dividends,  and  after  her  death  to  such 
persons  as  she  should  by  deed  or  will  appoint,  and  in  default  of 
appointment,  in  trust  for  such  person  or  persons  as  would  then  by 
virtue  of  the  statute  be  entitled  to  the  testatrix's  personal  estate 
if  she  had  died  intestate  ;  it  was  held  that  then  was  to  be  taken  as 
an  adverb  of  relation  and  not  of  time, (I)  and  it  must  therefore  go 
to  such  persons  as  were  next  of  kin  to  the  testatrix  at  her  death. 

20.  If  a  power  be  confined  to  children  living  at  the  death  of 
the  donee,  and  in  default  of  appointment  the  fund  is  given  to  such 
children,  the  \Yord  pcu/abie  in  a  gift  over  will  not  be  read  vested, 
so  as  by  construction  to  enlarge  the  gift  to  those  who  attain  the 
specified  age,  but  die  in  the  lifetime  of  the  donee  of  the  power. (a) 

21.  And  where  an  estate  was  settled  upon  a  marriage  upon  the 
children  to  be  begotten  and  their  heirs  forever,  in  such  shares  and 
proportions  as  the  husband  should  appoint,  and  for  want  thereof, 

upon  all  the  children  and  their  heirs  forever,  the  latter 
[  "209  ]  gift,  which  imported  joint-tenancy,  was  *held  not  to  be 

controlled  by  the  previous  gift  and  power,  nor  by  a  gift 
over,  from  which  it  was  contended  that  the  settlement  intended  a 
tenancy  in  common. (6) 

22.  These  decisions  establish  a  proper  rule — that  clear  words 
in  one  limitation  shall  not  lightly  be  controlled  by  implication 
arising  from  another  limitation. 

(x)  Longmore  v.  Broom,  7  Ves.  jun.  124. 

(y)   Fux  V.  Gregg,  App.  No.  23. 

(2)  1  Cox,  131.  . 

(a)  Biclefield  v.  Record,  2  Sim.  354. 

{h)  Stratton  v.  Best,  2  Bro.  C.  C.  233. 

(I)  This  is  ordinarily  true;  but  this  gift  was  not  in  default  of  appointment,  then  to 
such  persons,  &c. ,  but  it  was  in  default  of  appointment  to  such  persons  as  should 
then  [at  that  time]  be  entitled. 


ISSUE  IN   COMPETITION  WITH   CHILDREN.  19S 

23.  It  seems  doubtful  whetlier,  if  one  object  be  removed  by  the 
eflFect  of  advancement,  the  share  shall  go  to  the  others,  under  the 
provision  in  default  of  appointment,  or  whether  it  shall  be  con- 
sidered as  a  purchase  by  the  father  at  the  sum  advanced,  or  as  a 
payment  by  him  to  the  benefit  of  which  he  is  entitled.  This 
question  arose  in  the  recent  case  of  Folkes  and  Western. (c) 
Under  the  trusts  of  a  term,  trustees  were  to  raise  4,000/.  for 
younger  childrens'  portions,  to  be  paid,  if  more  than  one,  as  the 
father  and  mother,  or  survivor,  should  appoint ;  in  default  of  ap- 
pointment, as  usual,  with  a  provision  that  if  the  father  should  ad- 
vance any  daughter  in  marriage,  unless  he  should  in  writing  de- 
clare it  not  to  be  for  her  portion,  such  daughter  should  receive 
only  so  much  further  portion  as  with  the  sum  advanced  would 
make  up  the  portion  provided  by  the  settlement.  Another  4000/. 
was  settled  in  the  same  way.  There  were  two  younger  children, 
botli  daughters ;  upon  the  marriage  of  one,  the  father  gave  her  a 
portion,  which,  it  was  declared,  should  be  a  satisfaction  for  her 
claims  under  the  settlement.  The  Master  of  the  Rolls  held,  that 
as  the  daughter  had  no  definite  interest,  except  in  default  of  ap- 
pointment, she  had  nothing  that  she  could  make  the  subject  of  a 
bargain  with  her  father  ;  he  could  not  say  that  any  definite  pro- 
portion had  sunk.  If  she  had  had  a  definite  interest,  it  would,  he 
admitted,  have  sunk,  and  therefore  have  been  no  charge  on  the 
estate.  He  thought,  then,  that  the  case  could  only  be  compared 
to  the  cases  upon  the  custom  of  London,  where  the 
*effect  of  advancement  was  merely  to  remove  that  child  [  *210  ] 
out  of  the  way,  and  to  increase  the  shares  of  the  others, 
and  not  to  increase  the  disposal)le  part  of  the  father's  estate. 
This  provision,  he  added,  must  have  the  same  eSect ;  removing 
the  daughter,  putting  her  out  of  tlie  question  altogether,  as  if 
there  never  had  been  such  a  child.  Therefore,  before  the  power 
ever  arose,  there  ceased  to  be  objects,  for  it  was  impossible  the 
mother,  who  had  survived  her  husband,  could  give  any  thing  to 
the  daughter  advanced.  That  was  expressly  stipulated,  and  she 
was  incapable  of  receiving  any  more  than  if  she  was  dead.  The 
consequence  was,  that  of  two  objects  being  removed,  the  other 
must  of  necessity  take  the  whole. 

(c)  9  Ves.  jun.  456.    See  Noel  v.  Lord  Walsingham,  2  Sim.  &  Stu.  99;  see  pi.  28, 
infra. 

Vol.  II.  17 


194  SUGDEN   ON   POWERS. 

24.  This  decision  appears  to  be  in  direct  opposition  to  a  case 
not  adverted  to.  1  allude  to  Pitt  and  Jackson,  or  Smith  and  Lord 
Camclford,(^)  where  money  was  directed  to  lie  laid  out  in  land, 
to  the  use,  after  the  deaths  ol'  the  husband  and  wife,  of  the  chil- 
dren of  the  marriage,  as  tlie  father  should  appoint,  and  in  default 
of  appointment,  as  the  mother  should  api)oint,  with  remainder,  in 
default  of  appointment,  to  the  children  in  tail.  There  were  two 
children.  The  father,  considering  the  money  as  not  laid  out  in 
land,  by  his  will,  gave  rather  more  than  a  moiety  of  it  to  Ann, 
one  child,  and  the  remainder  to  Mary,  the  other  child.  After  the 
will,  and  upon  the  marriage  of  Ann,  he  advanced  her  a  large  por- 
tion, and  soon  afterwards  by  a  codicil  revoked  the  legacy  to  her. 
And  it  was  conceded  by  the  counsel  for  Ann  and  her  husband, 
and  accordingly  decreed  by  Lord  Kenyon  at  the  Rolls,  that  the 
legacy  was  well  revoked,  as  the  father  was  a  purchaser  of  that 
moiety  1>y  the  fortune  given  to  Ann  upon  her  marriage.  Upon 
a  bill  of  review  being  filed  to  this  decree,  which  involved  other 
points,  Lord  Rosslyn  held  that  the  fund  had  been  invested  in  the 
purchase  of  an  estate  ;  and  that  the  appointment  in  the  will  of  the 

fund  could  not  be  supi)orted  as  an  appointment  of  the 
[  *211  ]  estate.     He  considered,  *therefore,  that  the  estate  must 

go  as  in  default  of  appointment :  but  as  to  Ann,  he 
thought  her  father  had  satisfied  all  the  interest  that  she  could,  as 
a  creditor,  set  up  in  opposition  to  any  act  in  his  will,  in  regard  to 
her  provision  under  the  marriage  settlement.  She  was  totally  in 
his  power  by  the  portion  given  to  her  uj)on  her  marriage,  when 
her  interest  wider  the  appointment  ivas  eonting-ent  and  nncertain^ 
in  respect  of  the  possibility/  of  the  existence  of  other  children. 
But  he  thought  that  even  a  well-executed  appointment  could  not 
take  from  IMaiy,  the  other  daughter,  one  moiety ;  for  though  the 
father  could  entitle  himself  to  all  Ann  could  claim,  it  could  be 
only  to  that  she  could  claim  absolutely  against  the  other  daughter. 
He  could  not  make  an  appointment  in  truth  beneficial  to  himself. 

25.  It  is  to  be  regretted  that  this  case,  which  carries  with  it 
the  joint  authority  of  Lord  Kenyon  and  Lord  Rosslyn,  was  not 
adverted  to  in  the  case  of  Folkes  and  Western,  more  especially 
as  in  the  latter  case  was  decided  by  analogy  to  cases  which  do 
not  necessarily  bear  upon  it,  and  which  are  themselves  not  founded 

((i)  2  Bro.  C.  C.  51 ;  2  Ves.  jun.  698.    See  2  Myl.  &  Cra.  253. 


EFFECT   OF   ADVANCEMENT.  196 

in  reason ;  for  it  was  admitted  that  in  those  cases  one  should 
thmk,  prim  I  facie,  the  efifect  of  advancement  hj  the  father  would 
be  to  increase  that  part  of  the  estate  of  which  he  had  power  to 
dispose.  Lord  Rosslyn  avoided  the  objection  upon  wliich  the 
opinion  of  the  Court  was  grounded  in  Folkes  and  Western,  viz., 
that  the  interests  being  contingent  and  uncertain,  there  was 
uotliing  that  could  l)e  made  the  sulyect  of  the  bargain,  by  holding 
the  advancement  to  be  a  purchase  of  the  child's  share  in  default 
of  appointment,  or  of  what  she  could  become  entitled  to  under  an 
appointment.  The  only  objection  to  this  construction  appears  to 
be,  that  where  the  power  is  given  to  the  wife  if  she  survive,  the 
advancement  circumscribes  her  power  ;  for  as  the  husband  himself 
cannot  ajipoint  a  greater  portion  to  the  child  he  has  advanced 
than  the  child  would  take  in  default  of  appointment,  because  it 
would  in  effect  be  an  appointment  to  himself,  it  seems 
equally  to  follow  that  the  *wife  could  not  appoint  a  [  *212  ] 
larger  share,  lest  such  a  power  should  open  a  door  to 
fraud  on  the  other  child.  But  still  the  wife's  power  might  well 
be  held  to  remain,  so  as  to  enable  her  to  give  the  same  share  to 
the  daughter  tinadvanced,  as  she  might  have  given  to  her  if  the 
other  daughter  had  not  been  advanced,  and  the  father's  represen- 
tatives must  be  content  with  the  share  which  may  be  appointed 
by  the  wife  to  the  advanced  daugliter,  or  may  be  permitted  to 
descend  to  her.  The  only  infringement  then  on  the  mother's 
power  would  be  this,  that  in  case  of  disobedience,  she  could  not 
deprive  the  unadvanced  child  of  the  share  provided  for  it  in 
default  of  appointment,  but  she  would  havie  the  best  possible  hold 
on  the  ol>edience  of  the  child,  in  the  power  which  would  still 
remain  of  increasing  the  portion  given  in  default  of  appointment. 
Besides,  if  the  curtailment  of  the  power  be  an  objection,  it  bears 
with  the  greatest  possible  force  on  the  rule  as  estal)lished  by 
Folkes  and  Western,  for  there,  by  the  effect  of  the  advancement, 
it  was  holdcn,  that  the  entire  fund  was  at  once  given  to  the  unad- 
vanced child,  and  consequently  the  motlier  was  deprived  of  all 
nowor  over  the  fund.  It  Avould  seem,  therefore,  that  till  the  cases 
I'ome  again  under  the  review  of  the  Court,  it  would  not  l)e  safe 
in  practice  to  consider  the  case  of  Pitt  and  Jackson  as  overruled. 
2tj.  In  Noel  v.  Lord  Walsingham,(e)  Sir  John  Leach,  V.  C. 

(e)  2  Sim.  &  Stu.  99. 


IDG  SUGDEN   ON   POWERS. 

obsciTcd,  that  having  carefully  considered  the  case  of  Folkes  v. 
Western,  he  did  not  concur  in  the  observation  made  at  the  bar, 
tliat  there  was  error  in  that  decree,  inasmuch  as  it  was  not  de- 
clared that  the  fatiier  was  a  i)urchaser  of  the  daughter's  share. 
There  was  in  that  case  no  expressed  intention  on  the  part  of  the 
father  to  that  eiVect.  lie  had  more  difficulty  as  to  that  part  of 
the  decree  which  declares  that  the  motlicr  had  lost  her  power  of 
appointment.     The  settlement  gave  her  in  the  event,  which  haj>- 

pened,  of  her  surviving  her  husband,  a  power  to  appoint 
[  *213  ]  the  whole  fund  *to  any  one  child,  and  the  act  of  the 

husl)and  in  providing  a  satisfaction  for  one  child,  could 
not,  he  thought,  deprive  the  ■widow  of  her  power  to  api)oint  the 
whole  fund  to  the  only  other  child.  And  such  appointment 
appeared  to  him  to  have  been  necessary,  in  order  to  enable  the 
only  other  child  to  take  the  whole  fund ;  for  there  being  in  fact 
no  appointment  either  by  husband  or  wife  in  favour  of  any  child, 
the  consequence  should  seem  to  be  that  the  unprovided  child 
could  take  only  a  moiety  of  the  unappointed  fund,  and  that  the 
other  moiety,  which  )jy  the  terms  of  the  settlement  would  vest  in 
the  provided  child,  would  sink  for  the  benefit  of  the  estate 
charged,  if,  as  he  thought,  the  father  could  not  be  considered  as 
a  purchaser,  but  otherwise  would  be  a  part  of  the  personal  estate 
of  the  father.  The  case  of  Boyle  v.  Bishop  of  Peterborough  bore 
strongly  upon  this  view  of  the  case. 

27.  In  a  case  in  Ireland  where  the  point  did  not  call  for  a 
decision,  the  Lord  Chancellor  approved  of  Folkes  v.  AVestcrn, 
without  at  all  examining  the  case  of  Pitt  v.  Jackson.  He  said  it 
had  been  argued  that  inasmuch  as  the  portion  was  to  be  consider- 
ed as  vested,  though  liable  to  be  divested,  therefore  Sir  W.  Grant 
was  not  warranted  in  considering  it  as  unascertained :  this,  he 
added,  seemed  founded  on  a  mistake  ;  for  being  vested  is  one 
thing,  and  being  ascertained  is  another.  A  portion  of  1,000/., 
the  right  to  which  is  vested,  but  which  is  liable  to  be  reduced  to 
any  sum  not  illusory,  is  just  as  unascertained  as  if  it  were  entirely 
contingent. (/)  But,  as  we  have  seen,  according  to  Sir  W.  Grant, 
the  power  of  appointment  is  gone ;  and  therefore  the  share  of  an 
only  remaining  child  is  both  vested  and  ascertained. 

28.  Where  by  the  terms  of  the  settlement  any  advance  made 

(/)  Brownlow  v.  Meath,  2  Ir.  Eq.  Rep.  383;  2  Dru.  &  Wal.  674. 


EFFECT   OF   ADVANCEMENT.  197 

by  the  father  in  his  lifetime  is  to  be  taken  in  or  towards  satisfac- 
tion of  the  portion  provided  by  the  settlement  for  a  younger 
child,  unless  the  father  shall  declare  the  contrary  ; — the  true  con- 
struction of  this  provision  is,  that  if  the  father  make 
*an  advance  to  an  object  of  the  settlement  without  any  [  *21'4  ] 
declaration  of  intention  in  respect  to  it,  the  advance 
operates  to  the  exoneration  of  the  estate  charged  with  the  por- 
tion, but  that  the  father  is  at  liberty  to  declare  that  the  child 
advanced  shall  notwithstanding  receive  its  full  portion^  or  is  at 
liberty  to  consider  liiraself  pro  tanto  the  purchaser  of  the  portion, 
and  to  declare  in  effect  that  it  shall  remain  a  charge  upon  the 
estate  for  his  benefit.  This  was  laid  down  by  Sir  John  Leach,(^) 
and  appears  to  be  the  true  rule  ;  but  it  does  not  meet  every  case. 
Where  the  portions  are  actually  a  fund  raised,  there  is  no  estate 
to  be  discharged,  and  the  question  simply  is,  to  whom  the  child's 
portion  is  to  belong, — to  the  parent  who  has  paid  it,  to  the  child 
who  has  already  received  it,  or  to  the  other  children  by  way 
of  increase  to  their  portions  ?  Of  course  the  child  who  is  fully 
advanced,  and  Ijarred  by  the  very  provision,  cannot  take  :  it 
would  as  we  have  seen,  be  difficult  to  give  it  -to  the  other  chil- 
dren, unless  the  parent  has  shown  an  intention  so  to  l^estow  it. 
Supposing  there  be  two  children  and  a  fund  of  2,000/.,  and 
the  father  upon  the  marriage  of  one  advances  her  1,000/., 
which  is  to  be  a  satisfaction  of  her  portion,  can  it  be  presumed 
that  he  intended  the  unadvanced  child  to  have  the  whole 
2,000/.  simply  because  he  makes  no  declaration.  If  a  father 
has  secured  the  portions  by  covenant  or  bond,  the  advancement 
ought  to  go  pro  tanto  in  performance  of  his  obligation.  It  was 
never  doubted  that  the  father  might  keep  alive  the  portions 
for  his  own  benefit  ;(/t)  and  he  is  under  no  obligation  to  pay  them 
off.  Where  the  settlement  is  silent  as  to  advances,  the  question 
is  one  of  intention.  Where  there  is  such  a  clause,  it  really  only 
expresses  the  rule  of  equity,  and  it  is  rather  to  regulate  the 
rights  of  the  child  advanced  than  to  declare  the  effect  of  the  ad- 
vancement on  the  fund  and  the  other  children.  It 
appears  "to  have  been  overlooked  that  in  Folkes  and  [  *215  J 

(ff)  2  Sim.  &  Stu.  110.    See  9  Mod.  470;  GooMing  v.  Haverfield,  M'Clel.  34&; 
Fazakerley  v.  Gilibrand,  G  Sim.  591. 
(h)  Countess  Gower  v.  Earl  Gower,  1  Cox,  63. 

17* 


1U8  SUGDEN   ON   rOWERS. 

Western  the  i>rovision  by  tlic  fatlier  was  by  a  covenant  that  lie, 
his  heirs,  &c.,  -wouUl  ])ay  the  portion  within  six  months  after 
the  deatli  of  himself  and  liis  wife,  and  400/.  a  year  in  the  mean- 
time:  and  it  was  dechircd  that  that  sum  shdubl  l)e  deemed  a 
satisfaction  of  all  such  claims  as  (he  daughter  might  have  to  the 
settlement  fund.  Jt  would  be  difficult  to  maintain  that  the 
father  was  not  entitled  to  the  aid  of  the  child's  portion  to  per- 
form his  covenant  to  pay  a  sum  in  satisfaction  of  that  portion. 
The  father's  act  did  not  manifest  an  intention  to  exonerate  the 
estate,  or  to  increase  the  portions  of  the  other  children. 

29.  In  Noel  v.  Lord  AValsingliam,(i)  two  points  were  raised, 
neither  of  which  presented  any  difficulty.  By  the  trusts  of  a 
term  15^000/.  was  to  be  raised,  and  was  in  eiFect  settled  for  the 
portions  of  daughters  in  such  shares  as  their  father  should  ap- 
point, and  in  default  of  appointment,  to  them  equally,  with  a 
proviso  that  advancements  by  the  father  should  go  pro  tanto  as 
their  portions.  Upon  the  marriage  of  one  of  five  daughters, 
Matilda,  the  father  advanced  her  7,000/.,  and  by  deed  regularly 
appointed  to  her  3,000/.,  being  one-fifth  of  the  whole  sum,  and 
by  another  deed  the  daughter  and  her  husband  assigned  the 
3,000/.  appointed  to  her,  unto  the  father  absolutely.  By  his  will 
he  directed  the  whole  15,000/.  to  be  paid  to  his  daughters,  except 
Matilda.  The  Vice-Chancellor  considered  it  necessary  to  decide 
the  point,  but  he  observed  that  the  father  became  the  purchaser 
of  3,000/.  which  he  had  appointed  to  Matilda,  and  that  sum  not 
being  more  than  her  aliquot  share  of  the  15,000/.,  it  might  be 
difficult  to  question  the  validity  of  that  appointment  or  purchase. 

30.  The  other  point  arose  thus  :  upon  the  marriage  of  another 
daughter,  Gertrude,  the  father  advanced  her  10,000/.,  and  she  by 
deed  released  to  him  and  his  heirs  all  her  right,  kc.  in  and  to 

the  estates  charged  with  the  portions.  By  a  codicil  to 
{  *216  ]  *his  Yidll  made  the  next  day,  he  in  consideration  of  the 

provision  made  for  his  daughter  Gertrude,  revoked  the 
appointment  in  his  will  with  respect  to  the  15,000/.,  so  far  as 
respected  his  daughter  Gertrude  and  her  share  of  the  same,  but 
aiot  further  or  otherwise  with  respect  to  his  other  daughters,  ex- 
cept Matilda.  The  Yice-€hanccllor  said,  that  he  concurred  with 
the  argument  that  the  deed  of  release  might  under  the  circum- 

(i)  2  Sim.  &  Stu.  99. 


JOINT   APPOINTMENT   ON   SEPARATE   POWER.  199 

stances  l)e  treated  as  an  assignment  of  her  interest  in  the  15,000/. 
to  her  father,  and  he  took  the  true  intent  and  effect  of  his  codicil 
to  be  not  to  leave  one-third  unappointed ;  but  as  his  will  had 
given  the  15,000/.  equally  between  his  daughters,  except  Matilda, 
that  the  intention' of  the  codicil  was  sfurther  to  except  Gertrude, 
and  to  give  the  15,000/.  equally  between  the  other  daughters ; 
and  so  decreed. 

31.  These  cases  prove  that  the  father,  even  where  there  is  a 
clause  as  to  advancements,  may  keep  the  child's  portion  on  foot 
for  his  own  benefit,  and  even  a  release  by  the  child  in  form  may, 
in  favour  of  the  intention,  be  deemed  an  assignment.  It  is  quite 
clear  in  the  above  case  that  the  release  and  codicil  were  intended 
to  operate  as  an  increase  of  the  remaining  daughters'  portions, 
and  not  an  exoneration  pro  tanto  of  the  estates  charged  with  them. 

32.  In  a  case  before  Lord  llardwicke,(^)  where  20,000/.  was 
provided  for  younger  children,  subject  to  the  father's  appointment, 
he  made  other  provision  for  the  only  younger  son,  on  condition 
that  he  released  his  share  of  the  first  fund ;  the  father  then  re- 
cited his  desire  that  the  whole  of  the  20,000/.  should  be  divided 
between  his  daughters,  but  made  no  other  appointment  of  the 
son's  share  to  them.  By  his  will  he  gave  to  his  daughters  so 
much  as,  with  what  was  provided  by  the  settlement  for  them, 
would  make  up  their  fortunes  10,000/.  The  daughters  required 
10,000/.  a-piece  beyond  the  5,000/.,  which  was  not  provided  for 
them  l)y  the  settlement,  liut  purchased  Irom  the  son 

for  *their  benefit.  Of  course  this  was  refused.  Lord  [  *217  ] 
Hardwicke  said  he  had  not  made  a  direct  gift  of  the 
son's  5,000/.  to  them,  but  after  he  had  put  it  in  his  power  he  con- 
sidered the  whole  20,000/.  as  provided  for  them  by  the  marriage 
settlement,  the  whole  right  arising  under  that,  he  only  exercising 
the  power  he  had  over  it. 

33.  In  the  cause  of  Simpson  v.  Paul,(/)  where  a  fund  was 
settled  to  be  divided  between  the  children,  in  shares  as  the  hus- 
band and  wife,  or  in  defViult  thereof,  the  survivor  of  them  should 
apjjoint,  but  in  default  of  such  appointment  the  fund  was  to  be 
equally  divided  between  the  children,  unless  the  husband  and 
wife  or  the  survivor  should  otherwise  appoint  the  same :  upon  the ' 

(/c)    Duke  of  Bridgcwatcr  v.  Egcrton,  2  Ves.  122. 
(0  2  Cox,  34^  vide  supra,  p.  201. 


200  SUGDEN   ON   POWERS. 

marriage  of  one  of  the  daughters  a  joint  appointment  was  made 
of  a  third  of  the  sum  to  her,  wliich  was  to  belong  to  her  as  Aer 
share  of  tlie  fund ;  and  the  wife  and  her  intended  husband  re- 
leased all  elaim  to  the  J'nnd.  It  was,  as  we  have  seen,  held  that 
the  wife  as  survivor  could  not  increase  tlie  daughter's  share;  and 
Lord  Northiugton  held,  that  tlic  two  only  other  children  were 
entitled  e(|ually  to  the  whole  of  the  una})pointed  fund.  But  what- 
ever may  have  been  the  real  intention  of  the  person  executing 
the  power,  appointments  to  several  of  the  children  of  equal  por^ 
tions  of  the  fund  will  not  by  construction  amount  to  an  equal 
appointment  to  all,  so  as  to  exclude  those  to  whom  shares  are 
appointed  from  participating  in  the  gift  in  default  of  appoint- 
ment. (/«)  And  an  appointment  to  a  child  of  an  equal  share  as 
her  share,  but  not  in  lieu  of  her  share,  will  not,  as  already  ol>- 
«ervcd,  exclude  her  from  a  portion  of  the  residue. 

34.  In  Fortescue  v.  Gregor,(w)  there  was  a  gift  by  will  to  the 
-children  of  A.,  deceased,  of  1,000/.,  to  be  paid  to  them  in  such 
shares  as  B.  should  direct.     There  were  three  children,  and  upon 

a  bill  filed  one  of  the  children  presented  a  petition 
[  *218  ]  *stating  that  B.  was  desirous  that  the  fund  should  be 

equally  divided  amongst  the  three,  and  accordingly 
■one-third  was  transferred  to  the  petitioner.  B.  died  without 
making  any  further  appointment.  Lord  Rosslyn  thouglit  that  the 
recital  in  the  petition  could  not  well  be  taken  as  an  appointment. 
It  came  however,  he  said,  to  the  same  thing,  for  it  was  clear  by 
the  appointment  he  meant  to  give  that  child  her  share.  Then  at 
his  death,  when  there  could  be  no  further  appointment,  the  neces- 
sary consequence  of  his  appointment  was,  that  there  was  only  two 
shares  and  two  objects  of  the  pov/er,  and  there  could  be  no  sur- 
vivorship. 

35.  The  case  was  a  peculiar  one.  The  gift  was  to  the  children 
and  B.  had  only  to  fix  the  shares  and  ages :  and  the  power  was 
held  to  make  the  gift  itself  operate  as  a  tenancy  in  common. 
Now  the  decision  made  the  appointment  inoperative,  for  the  fund 
went  equally  as  in.  default  of  appointment.  But  although  the 
recital  in  the  petition  could  not  operate  as  an  appointment.^  yet 
it  clearly  showed  that  the  petitioner  was  to  take  one-third  as  her 


(jn)  Wilson  v.  Piggott,  2  Ves.  jun.  351. 
(n)  5  Ves.  jun.  55S. 


JOINT  APPOINTMENT  ON   SEPARATE   POWER.  201 

.share,  and  that  the  other  two-thirds  were  to  go  as  in  default  of 
appointment,  so  that  the  appointee  accepted  her  one-third  as  a 
full  satisfaction  of  her  interest  under  the  gift  in  the  will. 

36.  Where  an  estate  was  devised  to  A.  for  life,  and  after  his 
death  to  such  of  the  testator's  relations  of  the  name  of  A.,  l>eing 
a  male,  as  A.  should  appoint,  and  in  default  of  such  appointment, 
to  such  of  his  relations  of  the  name  of  A.,  being  a  male,  as  A, 
should  adopt,  if  he  should  be  living  at  A.'s  death,  and  his  heirs  ; 
and  in  case  A,  should  not  adopt  any  such  male  relation,  or  no 
such  male  relation  should  be  living  at  A.'s  decease,  then  to  the 
next  or  nearest  relation  of  the  testator,  being  a  male,  or  the 
elder  of  such  male  relations,  if  more  than  one  of  equal  degree 
living  at  the  testator's  death,  in  fee :  A.  was,  at  the  testator's 
death,  his  nearest  male  relation.  A.  died  without  having  exer- 
cised the  powers  given  to  him  by  tlie  will,  and  it  was  held  by  the 
Court  of  Exchequer  that  lie  took  the  fee  in  default  of 
appointment.  *Sir  John  Leach,  M.  R.,  thought  this  [  "219  ] 
quite  inconsistent  with  the  limited  power  given  to  A., 

of  appointing  to  a  male  relation  of  the  name  of  A.,  that  the  tes- 
tator should  have  intended  to  include  A.  in  the  description  con- 
tained in  the  ultimate  limitation,  and  thereby  give  him  the  power 
of  defeating  the  ol)ject  of  the  appointment,  [t.  e.  give  hira  an 
interest  not  to  exercise  the  power]  ;  and  he  accordingly  sent  the 
case  to  the  C.  P.(o)  That  Court,  however,  came  to  the  same 
conclusion  as  the  Court  of  Exchequer,(/?)  and  the  present  Master 
of  the  KoUs  confirmed  the  certificate. (f/) 

37.  If  the  gift  over  of  personal  property  in  default  of  appoint- 
ment is  to  the  executors  and  administrators  of  the  donee  of  the 
power,  who  is  also  tenant  for  life,  the  absolute  property  will  pass 
to  him,  sulyect  to  the  power  ;  for  such  a  limitation  is,  as  to  per- 
sonal property,  the  same  as  a  limitation  to  the  right  heir  as  to 
real  estate — a  limitation  to  the  next  of  kin  is  like  a  limitation  to 
heirs  of  a  particular  description,  which  would  not  give  the  an- 
cestor, having  a  particular  estate,  the  Avhole  property  in  the 
land.(r) 

(0)  Pearce  v.  Vincent,  2  Myl.  &  Kee.  800. 
(p)  2  Bing.  N.  C.  328. 

(q)  2  Kee.  230.    See  Jennings  v.  Newman,  10  Sim.  219. 

(r)  Anderson  V.  Dawson,  15  Ves.  jun.  53G.  Sec  Sanders  v.  Frank,  2  Madd.  152; 
Stocks  V.  Dodsley,  1  Kee  325;  Wallis  v.  Taylor,  8  Sim.  241. 


202  SUGDEN   ON   POWERS. 

38.  A  bad  appoiiitiiicnt  is  a  nullity :  Therefore  where  the 
whole,  or  even  part,  of  the  fund  is  ill  appointed,  it  goes  according 
to  its  original  destination  in  the  event  of  there  being  no  appoint- 
ment. And  consequently  a  person  to  whom  a  specific  share  is 
well  appointed,  shall  not  be  excluded  from  taking  any  of  the  un- 
appointed  shares. (a*)  To  guard  against  these  decisions,  where 
part  only  of  the  fund  is  well  appointed,  in  which  case  the  inten- 
tion of  the  person  executing  the  power  is  generally  de- 

[  *220  ]  feated,  it  is  usual  to  hiscrt  an  ex[)i'ess  'clause  in  instru- 
ments creating  powers  of  appointment  amongst  several 
objects,  as  children,  that  no  child  to  whom  a  share  is  appointed 
shall  take  any  share  of  the  unappointcd  part  until  each  of  the 
other  children  shall  have  received  a  share  equal  to  that  appointed 
to  him. 

39.  It  has  been  held  that  where  such  a  clause  was  added  to  an 
appointment,  and  part  of  the  fund  was  not  subject  to  the  power, 
yet  as  tlie  parties  by  mistake  considered  the  whole  of  the  fund  as 
within  the  power,  the  appointee  of  a  share, — as  well  where  the 
fund  subject  to  the  poAver  was  sufficient  wliolly  to  supply  the  ap- 
pointment, as  where  it  was  insufficient  for  that  purpose, — could 
not  take  any  part  of  the  fund  not  subject  to  the  power  without 
bringing  the  appointed  share  into  hotchpot. (^ 

40.  Generally  speaking,  a  gift  in  default  of  appointment  does 
not  control  the  power.  Thus,  if  a  fund  be  settled  on  one  for  life, 
with  a  power  to  appoint  to  his  children,  and  in  default  of  appoint- 
ment the  fund  is  given  to  the  children  equally,  and  there  is  a  de- 
claration that  upon  children  dying  in  the  life-time  of  the  father, 
leaving  issue,  their  issue  sliall  stand  in  their  place,  this  declara- 
tion would  apply  only  to  the  gift  in  default  of  appointment. (I) 

41.  Whether  a  power  is  to  override  the  uses  of  the  settlement, 
or  to  take  effect  only  in  default  of  the  previous  limitations,  de- 
pends upon  the  context  of  the  instrument  creating  the  power.  If 
the  power  is  in  terms  unrestrained,  but  it  is  connected  with  a  gift 

(s)  Menzey  v.  Walker,  For.  72.  Alexander  v.  Alexander,  2  Ves.  650;  Pocklington 
V.  Bayne,  1  Bro.  C.  C.  450;  Bristow  v.  Warde,  2  Vcs.  jun.  336;  Wilson  v.  Piggott, 
2  Ves.  jun.  351;  Iloutlcdge  v.  Dorril,  2  Ves.  jun.  357;  Smith  v.  Lord  Camelford,  2 
Ves.  jun.  008;  Attorney-General  v.  Ward,  3  Ves.  jun.  327.    See  1  Ves.  &  Bea.  92.  93. 

(/)  Warde  v.  Firmin,  11  Sim.  235;  a  case  of  some  difficulty. 

{I)  This  does  not  seem  to  have  been  adhered  to  in  Fox  v.  Gregg,  App.  No.  23. 


MISTAKE  IN   SETTLOIENT   CORRECTED.  203 

in  default  of  issue,  and  as  a  power  to  defeat  the  whole  settlement, 
it  would  be  inconsistent  with  a  particular  power  of  disposing  «f 
part  of  the  fund ;  the  power  may  by  construction  be  confined  to 
the  event  of  there  being  a  failure  of  issue,  (m) 

*42.  Before  we  close  these  observations,  we  may  ob-  [  *221  ] 
serve,  that  if  by  mistake  in  a  settlement  on  children,  the 
estate  in  default  of  appointment  is  vested,  not  in  the  children,  but 
in  the  husband,  who  was  not  intended  to  take  unless  in  default  of 
issue,  equity  will,  upon  sufficient  evidence,  correct  the  mistake,  in 
like  manner  as  mistakes  in  deeds  generally  are  corrected  in  that 
court,  (.x) 

(u)  Peddie  v.  Peddie,  6  Sim.  78.     The  case  itself  is  one  of  great  nicety, 
(i)  Pritchard  v.  Quinchant,  Jenkins  v.  Quinchant,  Ambl.  147;  5  Ves.  jun.  596,  n.; 
Barstow  v.  Kilvington,  5  Ves.  jun.  593. 


204 


BUG  DEN   ON  POWERS. 


[  *222  ] 


*=CIIAPTER  XIII. 


OF  RELIEF  AGAINST  POWERS. 


SECTION  I. 

OF   THE   RELIEF   AFFORDED   BY  THE    27    ELIZ.    C.    4,  AGAINST   POWERS 

OF   REVOCATION. 


1.  Settlements  with  power  of  revocation 

voidable  by  statute. 

2.  Act  does  not  extend  to  partial  powers. 

3.  Conditional  power  within  the  Act. 

4.  Power  with  restrictions  not  within  the 

Act. 


5.  Immaterial  that  the  settlement  was  for 

valuable  consideration. 

6.  Future  power  within  the  Act. 

7.  Extinguishment    of  power  unimpor- 

tant. 
8.  Informal  revocation  not  aided  by  the 
Act. 


1.  We  have  seen  in  how  many  instances  the  execution  of  powers 
will  be  relieved  against ;  we  are  now  to  proceed  a  step  farther, 
and  to  inquire  in  what  cases  powers  themselves  will  be  set  aside. 
I  do  not  here  speak  of  a  power  void  in  its  very  creation,  as  where 
the  object  of  it  is  a  perpetuity,  or  of  a  power  not  well  created, 
but  of  powers  well  created,  and  which  may,  in  the  first  instance, 
be  legally  executed  ;  and  this  relief  is  given  by  the  statute  of  27 
Eliz.  c.  4,  whereby  it  is  enacted,  that  if  any  person  or  persons 
shall  make  any  conveyance,  gift,  grant,  demise,  limitation  of  use 
or  uses,  or  assurance  of,  in,  or  out  of  any  lands,  tenements,  or 
hereditaments,  with  any  clause,  pro%ision,  article,  or  condition  of 
revocation,  determination  or  alteration,  at  his  or  their  will  or 
pleasure,  of  such  conveyance,  assurance,  grants,  limitations  of 
uses,  or  estates,  of,  in,  or  out  of  the  said  lands,  tenements,  or  here- 
ditaments, or  of,  in,  or  out  of  any  part  or  parcel  of  them,  contain- 
ed or  mentioned  in  any  writing,  deed,  or  indenture,  of 
[  *223  ]  such  assurance,  conveyance,  grant,  or  *gift ;  and  after 


OF  THE  STATUTE  27  ELIZ.  C.  4.  205 

such  conveyance,  grant,  gift,  demise,  charge,  limitation  of  uses,  or 
assurance  so  made  or  had,  shall  demise,  grant,  convey,  or  charge 
the  same  lands,  tenements,  or  hereditaments,  or  any  part  or  parcel 
thereof,  to  any  person  or  persons,  bodies  politic  and  corporate, 
for  money  or  other  good  consideration,  paid  or  given  (the  said 
first  conveyance,  assurance,  gift,  grant,  demise,  charge,  or  limita- 
tion, not  by  him  or  them  revoked,  made  void  or  altered,  accord- 
ing to  the  power  and  authority  reserved  or  expressed  mito  him  or 
them,  in  and  by  the  said  secret  conveyance,  assurance,  gift,  or 
grant,)  that  then  the  said  former  conveyance,  assurance,  gift,  de- 
mise and  grant,  as  touching  the  said  lands,  tenements,  or  heredita- 
ments, so  after  bargained,  sold,  conveyed,  demised,  or  charged 
against  the  said  bargainees,  vendees,  lessees,  grantees,  and  every 
of  them,  their  heirs,  successors,  executors,  administrators,  and 
assigns,  and  against  all  and  every  person  and  persons  which  have, 
shall  or  may  lawfully  claim  any  thing  by,  from,  or  under  them,  or 
any  of  them,  shall  be  deemed,  taken,  and  adjudged  to  be  void, 
frustrate,  and  of  none  eficct,  by  virtue  and  force  of  the  act ;  pro- 
vided nevertheless,  that  no  lawful  mortgage  to  be  made  bona  fide^ 
and  without  fraud  or  covin*  upon  good  consideration,  shall  be  im- 
peached or  impaired  by  force  of  the  act,  but  shall  stand  in  the 
like  force  and  effect  as  the  same  would  have  done  if  the  act  had 
never  been  made. 

2.  To  understand  the  operation  of  this  statute,  we  must  con- 
sider. 1st,  what  instruments  are  avoided  by  it ;  and  secondly  in 
favour  of  whom.  And  first  it  is  to  be  observed,  that  the  statute 
does  not  extend  to  particular  powers,  as  a  power  to  charge 
:^,000/.  on  an  estate  of  considcraljle  value,  for  such  a  power  is  not 
a  power  within  the  words  of  the  statute  (bemg  for  a  particular 
sum,)  to  revoke,  determine,  or  alter  the  estate. (a) 

3.  But  it  is  of  course  clear,  that  a  settlement  by  which  a  power 
of  revocation,  or  a  power  tantamount  to  it,  is  reserved  to 

the  grantor,  is  void  against  a  subsequent  purchaser,(i)   [  *224  ] 
and  no  artifice  of  the  parties  can  protect  the  settle- 
ment.    Therefore,  although  the  power  l)c  conditional,  that  the  set- 
tlor shall  only  revoke  on  payment  of  a  trifling  sum  to  a  third  per- 

(o)  Jenkins  v.  Keymis,  1  Lev.  150, 

(b)  Cross  V.  Faustenditcb,  Cro.  Jac.  180;  Tarback  v.  Marbury,  2  Vem.  510.  See 
Lane,  22. 

Vol.  n.  18 


206  SUGDEN   ON   POWERS. 

son(c)  or  with  the  consent  of  any  third  person,  who  is  merely  ap- 
pointed by  the  grantor,(^/)  in  these  and  the  like  cases  the  con- 
dition will  be  deemed  colourable,  and  the  settlement  will  be  void 
against  a  subsequent  purchaser.  (1) 

4.  But  wliere  a  settlement  is  made,  with  a  power  to  the  settlor 
to  revoke,  so  as  that  the  money  l)e  paid  to  trustees  to  be  invested 
in  the  purchase  of  otlier  estates, (e)  or  to  revoke  with  the  consent 
of  a  stranger  bond  fide  appointed  by  the  parties,  and  his  consent 
is  made  requisite,  not  as  a  mere  colour,  but  for  the  benefit  of  all 

(c)  Griffin  v.  Stanhope,  Cro.  Jac.  454.  ^ 

{d)  See  3  Rep.  82G;  Lavender  v.  Blackston,  3  Keb.  526;  Bridg.  23. 
(e)  Doe  V.  Martin,  4  Term  Rep.  39, 


(1)  "In  Reade  V.  Livingston,  3  Johns.  Ch.  Rep.  481,  Chancellor  Kent  decided, 
that  a  settlement  after  marriage,  in  pursuance  of  a  parol  agreement  entered  into  be- 
fore marriage,  was  not  valid  against  creditors.  He  refers  to  Beaumont  v.  Sharp,  1 
Vez.  sen.  R.  27;  Belt's  Supp.  25,  S.  C,  as  in  point.  See  also  Atherly  on  Marr.  Sett. 
]49."_[Note  to  1  Am.  ed.] 

The  doctrine  in  Reade  v.  Livingston  is  now  somewhat  qualified.  "  A  fair  voluntary 
conveyance,  may  be  good  against  creditors,  notwithstanding  its  being  voluntary.  The 
circumstance  of  a  man's  being  indebted,  at  the  time  of  his  making  a  voluntary  con- 
veyance, is  an  argument  of  fraud.  The  question  in  every  case  therefore,  is,  whether 
the  act  done  is  a  bojia  fide  transaction,  or  whether  a  trick  or  contrivance  to  defeat 
creditors."  Cadogan  v.  Kennett,  Cowp.  R.  434,  per  Lord  Mansfield.  If  this  language 
contains  a  true  exposition  of  the  law  on  this  suhject,  then  the  question  of  fraud,  or 
not,  is  open  in  all  C!tses,  where  a  man  is  indebted,  as  a  mutter  of  fact ;  and  the  law 
does  not  absolutely  pronounce,  that  the  indebtedness  per  .*e  makes  the  settlement 
fraudulent.  See  1  Story's  £q.  Jur.  §  359,  and  notes;  Verplanck  v.  Strong,  12 
Johns.  R.  536  ;  Jackson  \\  Town,  4  Cowen  R.  603;  Wickes  v.  Clark,  8  Paige's  Ch 
Rep.  161.  165;  Seward  v.  Jackson,  8  Cowea  R.  406;  and  see  particularly,  per  Spen- 
ser, Senator,  p.  433,  434,  435,  citing  and  relying  upon  the  opinion  of  Mr.  Justice 
Thompson  in  Hind's  Lessee  v.  Longworth,  11  Wheat.  U.  S.  Rep.  213.  The  case  of 
Reade  v.  Livingston,  cited  supra,  was  assailed  in  Seward  v.  Jackson,  by  the  counsel; 
but  one  Senator  "  left  the  doctrine  of  that  case  untouched."  See  the  opinion  of  Steb- 
bins.  Senator,  p.  436.  Another  Senator,  however,  overturns  the  doctrine  of  C.  J. 
Kent,  not  without  some  hesitation.  "  Opinions  coming  from  such  a  source,  press 
upon  the  mind  with  great  weight,  and  are  entitled  to  the  highest  respect  and  consid- 
eration. But  being  in  a  Court  where  the  law  is  to  be  finally  settled,  and  considering 
the  importance  of  the  principle,  I  have  examined  the  authorities  cited  in  that  case, 
and  some  others,  and  have  come  to  the  conclusion,  that  the  legal  presumption  there 
laid  down  as  the  doctrine  of  the  Courts  is  not  warranted.^'  Per  Allen,  J-'enator,  p. 
438.  "The  doctrine  of  Reade  v.  Livingston,  and  of  those  English  Chancellors  upon 
•whom  it  rested,  is,  as  I  greatly  fear,  too  stern  for  the  present  times."  2  Kent's  Com. 
442,  note  (a)  5th  ed.  The  American  authorities  are  very  numerous,  and  as  they 
may  all  be  found  collected  in  2  Kent's  Comm.,  cited  supra,  it  ia  not  thought  necessary 
to  cite  them  here. 


POWER   OP   REVOCATION   VOID   AGAINST   PURCHASER.  207 

parties,  the  settlement  will  be  valid,  and  cannot  lie  impeaclied  by 
a  subsequent  purchaser.  (/)  This  was  determined  in  the  case  of 
BuUer  v.  Waterhouse.(g-) 

5.  Mr.  Powell  thought  the  point  was  not  settled  by  the  above 
case,  because  all  the  claimants  under  the  conveyance  were  pur- 
chasers for  a  valuable  consideration.  (A}  But  it  seems  to  be 
immaterial  whether  the  settlement  is  merely  voluntary,  or  upon 
valuable  consideration. (i)  The  statute  says,  that  all  conveyances 
which  the  grantor  has  power  to  revoke  shall  be  void  against  sub- 
sequent purchasers ;  and  therefore  if  parties  giving  a  valuable 
consideration  for  a  settlement  choose  to  permit  the  grantor  to 
reserve  a  power  to  revoke  the  settlement,  they  must  suffer  for 
their  folly.     The  grantor,  by  virtue  of  the  power,  may 

revoke  the  *settlement ;  and  if  he  sell  the  estate  without  [  *225  ] 
revoking  it,  tlie  statute  makes  it  void.  In  fact  if  we 
hold  that  settlements  upon  valuable  consideration  are  not  within 
this  provision,  we  must  at  the  same  time  admit  that  the  Legisla- 
ture did  not  intend  to  affect  the  voluntary  settlements  unless  they 
were  actually  fraudulent ;  for  voluntary  settlements  are  void 
against  purchasers  under  the  second  section  of  the  act.  This 
clause,  therefore,  would,  under  the  construction  put  upon  it  by 
Mr.  Powell,  have  scarcely  any  operation. 

6.  If  a  man  having  a  power  at  a  future  day  to  revoke  a  settle- 
ment made  by  him,  sell  the  estate  before  the  day  arrive,  the  settle- 
ment will  be  void  against  the  purchaser,  at  the  time  when  the 
vendor,  according  to  the  terms  of  the  power,  might  have  revoked 
the  settlement.  (A;) 

7.  And  a  settlement  made  with  power  of  revocation  will  be 
void  against  a  subsequent  purchaser,  although  the  grantor  release 
or  extinguish  the  power  previously  to  the  sale,  otherwise  the  ven- 
dor might  secretly  release  or  destroy  the  power,  and  then  show 
to  the  purchaser  the  conveyance  containing  the  power  of  revoca- 
tion, and  so  induce  him  to  buy  the  land.(/)     In  the  case,  how- 

(/)  See  Leigh  v.  Winter,  1  Jo.  411;  and  see  Lane,  22;  Lord  Banbury's  case,  2 
Freem.  8. 

ig)  2  Jo.  91;  3  Keb.  751;  and  see  ace.  Hungerford  v.  Earle,  2  Freem.  120. 

{h)  Pow.  on  Powers,  330. 

(t)  See  ace.  Rob.  on  Vol.  Conv.  637, 

(fc)  Standen  v.  Bullock,  Mo.  G18;  3  Rep.  82  b;  Bridg.  23. 

(/)  Bullock  V.  Tliorne,  Mo.  fil5. 


208  SUGDEN   ON   POWERS. 

ever,  in  which  tliis  was  decided,  the  settlement  appears  to  have 
been  voluntary,  and  the  purchaser  had  not  notice  of  the  power 
being  destrcfyed.  But  if  a  settlement  could  be  made  for  valuable 
consideration,  with  a  power  of  revocation,  and  the  vendor  should 
afterwards  release  the  power  for  a  valuable  consideration,  it  is 
conceived  that  a  purchaser,  subsequently  to  the  destruction  of  the 
power,  could  not  prevail  over  the  settlement,  more  especially  if 
he  had  notice  of  the  power  Ijcing  released. 

8.  The  statute,  as  we  have  seen,  operates  conditionally,  that  is, 
where  the  first  conveyance  is  not  revoked  according  to  the  power. 
The  act  has  no  efl'ect  until  the  donee  of  the  power  sell  tl^p  estate, 

without  revoking  the  first  conveyance  by  virtue  of  his 
[  *226  ]  power.     Suppose  then  a  vendee  professes  to  *execute 

his  power,  but  it  is  informally  exercised,  will  the  defect 
be  cured  by  the  statute  ?  The  Legislature  intended  to  protect 
purchasers  against  fraudulent  settlements,  with  power  of  revoca- 
tion ;  for  it  is  essential,  to  bring  a  case  within  the  act,  that  the 
estate  should  be  sold,  and  the  first  conveyance  not  be  revoked 
according  to  the  power  reserved  to  the  grantor  by  such  secret 
conveyance.  The  non-execution  of  the  power  is  the  fraud  which 
the  statute  intended  to  avoid.  The  conveyances  against  which 
the  act  was  intended  to  operate  were  presumed  to  be  secret.  It 
was  not  meant  to  relieve  any  man  who  was  aware  of  the  existence 
of  the  power,  and  might  have  required  it  to  be  exercised.  The 
statute  was  not  intended  to  operate  as  a  mode  of  conveyance. 
But,  without  insisting  that  where  a  purchaser  is  aware  of  the 
settlement  he  must  require  the  power  to  be  executed,  it  may  be 
urged,  that  where  a  purchaser  does  rest  his  title  on  the  execution 
of  the  power,  he  rejects  the  aid  of  the  Legislature,  and  takes  his 
title  under  and  not  in  opposition  to,  the  settlement ;  and  can 
therefore  only  stand  in  the  same  situation  as  any  other  purchaser 
who  has  unfortunately  taken  an  estate  under  a  power  defectively 
executed.  The  purchaser  can  scarcely  be  held  to  have  a  good 
legal  title,  unless  the  vendor  not  only  attempted  to  execute  the 
power,  but  actually  conveyed  the  estate  to  him. 


WHO  PURCHASER  WITHIN   27   ELIZ.   C.   4.  209 

'SECTION  II.  •      [  *227  ] 

OP   THE   PERSON   WHO   MAY   CLAIM   THE  RELIEF. 


1.  Purchaser  only  to  be  relieved, 

2.  Bona  fides  and  adequate  consideration 

required. 

J.  Lessee,  mortgagee,  conuzee,  a  pur- 
chaser. 

4.  Settlement  before  marriage  sufiBcicnt. 

6.  So  agreement  before  marriage,  or  por- 
tioae  afterwards. 

C.  If  an  agreement  before  marriage,  and 
settlement  after  it,  the  agreement 
must  be  in  writing,  semble. 

11.  Wife's  concurrence  in  settlement  a 
valuable  consideration. 


10.  So  upon  a  separation,  a  covenant  to 

indemnify  the  husband  against  the 
wife's  debts. 

11.  Voluntary  settlement  after  marriage 

not  aided  by  statute. 

12.  What   interest  must  have  been  con- 

tracted for. 

13.  Where  a  conveyance  is  void  against 

creditors  under  13  Eliz.  c.  5. 

14.  Claim  of  creditor  by  covenant  before 

breach. 


1.  In  Upton  and  Bassett's  case,(?/i)  it  was  resolved,  that  no 
purchaser  should  avoid  a  precedent  conveyance  made  by  fraud 
and  covin  but  he  who  is  a  purchaser  for  money,  or  other  valuable 
consideration  ;  for  thougli  in  the  preamble  it  is  said  (for  money, 
or  other  good  consideration,)  and  likewise  in  the  body  of  the  act, 
relating  to  voluntary  conveyances  (for  money  or  other  good  con- 
sideration,) yet  these  words  (good  consideration)  are  to  be  in- 
tended only  of  valuable  consideration  ;  and  that  appears  by  the 
clause  now  under  consideration,  for  there  it  is  said,  "  for  money, 
or  other  good  consideration  paid  or  given ; "  and  this  word 
"  paid  "  is  to  be  referred  to  money ,  and  '■'■  given  "  is  to  be  referred 
to  good  consideration,  so  the  sense  is  for  money  paid,  or  other 
good  consideration  given ;  which  words  exclude  all  consideration 
of  nature  or  blood,  or  the  like,  and  are  to  be  intended 

'only  of  valualdc  considerations  which  may  be  given  ;  [  *228  ] 

and  therefore  he  only  who  makes  a  purchase  of  land 

for  a  valuable  consideration  is  a  purchaser  within  this  statute. 

2.  And  to  take  advantage  of  this  statute  the  purchaser  must 
have  purchased  bom  fide  without  deceit  or  cunning,  and  for  a 
valuable  and  not  inadequate  consideration. (w) 

(m)  3  Rep.  83  a;  Cro.  Eliz.  444. 

(n)  Upton  V.  Basset,  Cro.  Eliz.  444;  Needham  v.  Beaumont,  3  Rep.  83  b;  2  And. 
233;  Doe  v.  Routledge,  Cowp.  705.  See  Bullock  v.  Sadlier,  Ambl.  764;  Doe  v.  James, 
16  East,  212. 

18* 


210  SUGDEN   ON  POWERS. 

8.  And  a  lessee  witli(o)  or  Avithout  a  fine,(p)  as  well  as  a 
mortgagee, (<7)  or  it  sliould  seem  a  conuzee  of  a  recognizance,  or 
any  who  for  a  valuable  consideration  have  any  charge  out  of  the 
and  or  upon  tlic  laud,(r)  is  a  purchaser  within  the  statute. 

4.  iSo  a  settlement  made  on  a  wife  or  children  prior  to  marri- 
age is  a  conveyance  for  a  valuable  consideration,  by  reason  of  the 
marriage  itself.  (5)  And  tlie  marriage  consideration  runs  through 
the  whole  settlement,  so  far  as  it  relates  to  the  husband  and  wife 
and  issue. (/)  And  there  are  cases  in  which  the  marriage  con- 
sideration will  extend  to  remainders  to  collateral  relations,  (m) 

5.  So  if  an  agreement  be  entered  into  before  ^he  marriage,  for 
a  settlement  of  the  estate, (.r)  or  the  husband  receive  an  addi- 
tional portion  with  his  wife,(^)  the  settlement,  although  made 
after  marriage,  will  be  deemed  valuable.     So,  even  an  agreement 

to  pay  the  husband  a  sum  of  money  as  a  portion  will 
[  *229  ]  *support  the  settlement  made  after  marriage,  if  the 
money  is  paid  according  to  the  agreement,  (s) 

6.  But  it  should  seem  that  the  agreement  before  marriage  must 
be  in  writing,  for  the  Statute  of  Frauds  expressly  provides  that 
no  action  shall  be  brought  on  any  agreement  made  upon  considera- 
tion of  marriage,  unless  there  be  some-  memorandum  thereof  in 
writing,  and  signed  by  the  party  to  be  charged ;(«)  and  it  is  of 
course  clear  that  the  subsequent  marriage  does  not  operate  as  a 
part  performance.  Fraud  is  an  exception  to  every  rule. (6)  But 
it  was  said  by  Lord  Chancellor  Parker,  according  to  one  report 
of  the  case  of  Montacute  and  Maxwell, (c)  "  that  a  parol  promise 

(0)  Coss  V.  Faustcnditch,  Cro.  Jac.  180. 

(p)  Ilinde  v.  Collins,  Cro.  Jac.  181,  cited. 

{q)  Goodright  v.  Moses,  2  Blac.  1019;  Chapman  v.  Emery,  Cowp.  279. 

(r)  See  Garth  v.  Ersfield,  Bridg.  22. 

(s)  ColTille  V.  Parker,  Cro.  Jac.  158;  Douglas  v.  Ward,  1  Cha.  Ca.  99;  Brown  v. 
Jones,  1  Atk.  188. 

it)  Nairn  v.  Prowse,  6  Ves.  jun.  752. 

(u)  See  2  Treat,  of  Purch.  p.  162. 

(x)  Griffin  V.  Stanhope,  Cro.  Jac.  454;  Sir  Ralph  Bovie's  case,  1  Ventr.  193. 

(1/)  Colville  V.  Parker,  Cro.  Jac.  158;  Jones  v.  Marsh,  For.  64;  Stileman  v. 
Ashdown,  2  Atk.  477;  Ramsden  v.  Hylton,  2  Ves.  304. 

(z)  Brown  y.  Jones,  1  Atk.  188. 

(a)  29  Car.  2,  c.  3,  s.  4. 

(6)  Montacute  v.  Maxwell,  1  P.  Wms.  618;  1  Str.  236;  Prec.  Cha.  526, 

(c)  1  Str.  237. 


PAROL   AGREEMENT   BEFORE  ]\[ARRIAGE.  211 

on  marriage  is  sufficient  consideration  to  support  a  settlement 
made  agreeable  to  it  after  marriage.  This  had  been  frequently 
determined."  The  dictum  was  made  upon  an  agreement  for  a 
settlement  of  personaltij,  to  which  the  statute  of  27  Elizabeth 
does  not  apply.  Lord  Thurlow,  in  a  case  also  upon  personal  es- 
tate, where  the  bill  was  filed  by  creditors,  although  he  held  that 
a  parol  agreement  for  a  settlement  before  marriage  was  void,  yet 
asked,  whether  there  was  any  case,  where,  in  the  settlement 
[after  marriage]  the  parties  recited  an  agreement  before  mar- 
riage, in  which  it  had  been  considered  as  within  the  statute  ;  to 
which  Lord  Eldoji,  then  Solicitor-general,  answered,  that  he  did 
not  think  it  would  be  good.(^)  This  is  according  to  Mr. 
Vesey's  report ;  but  according  to  Mr.  Cox's  report,  since  pub- 
lished. Lord  Thurlow  decided  the  very  point.  He  said,  he  could 
not  conceive  that  a  settlement  made  after  marriage,  in  pursuance 
of  an  agreement  before  "Vnarriage,  although  only  parol,  could 
ever  be  reckoned  a  fraudulent  settlement ;  that  the  cases,  though 
they  had  gone  a  great  way  in  treating  settlements  after 
*marriagc  as  fraudulent,  had  never  gone  to  such  a  [  230  ] 
length  as  that,  and  he  was,  therefore,  clearly  of  opinion 
that  the  settlement  was  in  itself  valid. (e)  Sir  W.  Grant,  with 
the  first  report  only  before  him,  ol->servcd,  in  Randall  v.  Mor- 
gan,(/)  that  there  were  dicta  that  a  settlement  after  marriage,  re- 
citing a  parol  agreement  before  marriage,  was  not  fraudulent, 
against  creditors,  provided  the  parol  agreement  has  actual  exist- 
ence :  but  he  did  not  know  that  the  point  had  been  directly  de- 
cided. It  was  discussed  in  Dilndas  v.  Dutens,  but  Lord  Thurlow, 
though  inclined  that  it  should  stand  good,  said,  it  was  a  mere 
matter  of  curiosity  if  the  first  point  was  against  the  plaintiff,  as 
it  was.  Li  Lavender  v.  Blackstone,  it  was  stated  incidentally,  in 
a  case  upon  a  voluntary  settlement  of  real  estate  after  twenty- 
one,  by  a  man  who  married  under  twenty-one,  that  Hale  held, 
that  although  it  was  proved,  that  upon  the  marriage  he  promised 
to  settle  his  estate,  when  he  sliould  attain  twenty-one,  upon  him- 
self and  liis  issue  (which  was  agreed  to  be  a  sufficient  considera- 

(f/)  Dundas  v.  Dutens,  1  Ves.  jun.  190,  200.     In  Shaw  v.  Jakeman,  4  East,  207, 
Lord  Thurlow's  question  is  represented  as  a  decision. 
(e)  2  Cox,  235;  Lord  Glengall  v.  Barnard,  1  Kee.  7G9. 
(/)  12  Ves.  jun.  74, 


212  SUGDEN  ON  POWERS. 

tiou  to  avoid  fraud,  altliougli  infants  arc  not  bound  in  law  to  per- 
form such  promise,)  yet  the  settlement  not  l)eing  made  until  three 
or  four  years  after  he  attained  twenty-one,  and  not  being  directly 
settled  according  to  his  promise,  shall  not  ]»e  presumed  to  be 
made  in  performance  of  his  promise,  without  direct  proof  of 
it.(i^)  It  has  escaped  observation  that  this  case  arose  ])efore  the 
Statute  of  Frauds,  and  therefore  cannot  rule  the  point  at  this 
day.  The  question,  however  did  not  call  for  a  decision,  and  the 
infant .  received  a  portion  of  2,000/.  with  his  wife.  There  is  a 
dictum  to  the  same  effect  in  Sir  Ralph  Bovie's  case,  upon  a  pro- 
mise by  an  adult,  where  he  received  a  portion  with  his  wife,  but 

that  case  also  arose  before  the  statute. (/t) 
£  *231  ]       *7.  The  only  case  upon  real  estate  since  the  statute  is 

Spurgeon  v.  Collier,  (i)  There,  shortly  after  the  mar- 
riage, a  settlement  of  real  estate  was  made  by  an  uncle  in  favour 
of  his  niece  and  her  husband,  and  the  issue.  Evidence  was 
offered  to  prove  a  parol  agreement  prior  to  the  marriage,  which 
was  not  satisfactory,  and  Lord  Northington  was  of  opinion  that  if 
proved  it  would  not  better  the  case.  It  was,  he  said,  admitted 
that  since  the  statute,  though  such  promise  was  made,  the  husband 
could  have  no  remedy.  Then  the  settlement  was  voluntary,  for 
it»could  not  be  compelled.  It  was  made  to  a  person  having  no 
right  to  demand  it ;  for  where  there  was  no  remedy  there  was  no 
right.  But  if  such  a  parol  agreement  were  to  be  allowed  to  give 
effect  to  a  subsequent  settlement,  it  would  be  the  most  dangerous 
breach  of  the  statute,  and  a  violent  blow*  to  credit.  For  any 
man  on  the  marriage  of  a  relation  might  make  such  a  promise,  of 
which  an  execution  never  could  be  compelled  against  the  pro- 
missor,  and  the  moment  his  circumstances  failed  he  would  execute 
a  settlement,  pursuant  to  his  promise,  and  defraud  all  his  creditors. 
8.  It  would  seem,  therefore,  that  now  in  a  naked  case  of  a 
parol  promise  before  marriage,  without  a  portion  with  the  wife,  a 
settlement  after  marriage  of  real  estate  would  be  merely  volun- 
tary. A  settlement  after  marriage  upon  a  wife  or  children,  with- 
out any  previous  agreement,  is  upon  good,  although  not  valuable, 

(g-)  Lavedder  v.  Blackstone,  2  Lev.  146. 

(/i)  1  Ventr.  104;  and  see  GriflBn  v.  Stanhope,  Cro.  Jac.  454,  where  the  question, 
it  should  seem,  was  raised  by  creditors, 
(t)  1  Eden,  55. 


wife's  concureence  a  V'aluable  consideration.       213 

consideration.  It  is  a  performance  of  a  moral  obligation. (A;)  The 
mere  agreement  by  parol  before  marriage,  to  make  such  a  settle- 
ment, does  not  place  the  case  higher.  The  settlement  is  still  only 
a  performance  of  a  moral  obligation,  for  the  parol  promise  is 
rendered  unavailable  by  the  Statute  of  Frauds.  In  each  case  the 
consideration  is  a  good  one,  but  it  is  a  duty  of  im- 
perfect obligation  on  the  party  to  make  the  *settlement.  [  *232  ] 
The  past  consideration  of  marriage  will  not  support  the 
settlement,  and  the  preyious  parol  promise  is  not  binding  ;  there- 
fore the  settlement  is  merely  voluntary.  It  may  perhaps  be  bind- 
ing on  creditors  although  void  against  purchasers. (1) 

9.  The  concurrence  of  his  wife  in  destroying  an  existing  settle- 
ment on  lier  for  the  benefit  of  the  husband,  is  a  sufi&cient  con- 
sideration for  a  new  settlement,  although  much  more  valuable 
than  the  former. (/)  And  the  better  opinion,  as  well  upon  i)rinci- 
ple  as  in  point  of  authority,  seems  to  be,  that  the  wife  joining  in 
barring  her  dower,  for  the  benefit  of  her  husband,  will  be  a  suflGi- 
cient  consideration  for  a  settlement  on  hcr.(w)  It  has  been  de- 
cided, that  the  wife  parting  with  her  jointure  is  a  sufiicient  con- 
sideration. Now,  if  that  which  comes  in  lieu  of  dower  is  a  valuar 
ble  consideration,  surely  the  dower  itself  must  be  equally  valuable. 
Besides,  where  a  woman  is  entitled'  to  dower,  the  estate  cannot 
be  sold  to  advantage  without  her  concurrence  ;  she  is  a  necessary 
party  to  any  arrangement  respecting  the  estate,  and  that  alone 
seems  a  sufficient  ground  to  support  a  settlement  on  her.(«)  But 
if  an  unreasonable  settlement  be  made  upon  a  wife  in  consideration 
of  her  releasing  her  dower,  it  seems  that  equity  in  favour  of  sub- 
sequent iiurchasers  will  restrain  her  to  hcrdower.(o)  But  these 
points,  now  that  the  wife's  dower  is  placed  in  the  husljand's 
power,  can  only  arise  on  past  transactions,  or  cases  not  within 
the  late  act.(/?) 

(A-)  See  Ellis  v.  Nimmo,  Lloy.  &  Goo.  temp.  Sugd.  333;  HoUoway  v.  Headington, 
8  Sim.  324;  and  see  Stamper  v.  Barker,  5  Madd.  157. 

(/)  Scott  V.  Bell,  2  Lev.  70;  Ball  v.  Bumford,  Prec.  Cha.  113;  1  Eq.  Ca.  Abr. 
354,  pi.  5.     See  Clerk  v.  Nettleship,  2  Lev.  118. 

(m)  Lavender  v.  Blackstoue,  2  Lev.  146.  See  and  consider  Evelyn  v.  Templar,  2 
Bro.  C.  C.  148. 

(n)  Vide  Roe  v.  Mitton,  cited  infra. 

(o)  Dolin  V.  Coltman,  1  Vern.  2114. 

{p)  3  &  4  Will.  4,  c.  105. 

(1)  See  Sterry  v.  Arden,  1  Johns.  Ch.  Rep.  261;  4  Kenfs  Com.  463,  5th  ed. 


214  SUGDEN  ON  POWERS. 

10.  If  upon  a  separation  the  husband  settle  an  estate  upon  his 
wife,  and  a  friend  of  hers  covenant  to  indemnify  the  husband 

against  any  dcl)ts  wliich  she  may  contract,  this  will  be 
[  •233  ]  a  sufficient  consideration  to  uphold  the  settlement  *as 

valuable. (^)  Indeed,  the  Court  will  anxiously  en- 
deavour to  support  a  fair  settlement :  and  nearly  any  considera- 
tion will  be  sufficient  for  that  purpose.  Therefore  if  a  ])crson 
whose  concurrence  the  i)arties  think  necessary,  join  in  a  settlement, 
his  concurrence  will  be  deemed  a  valuable  consideration,  although 
he  do  not  substantially  part  with  any  thing. (r) 

11.  It  follows,  therefore,  that  a  conveyance,  lease  or  mortgage, 
to  a  purchaser,  lessee,  or  mortgagee,  or  to  a  wife  or  child,  under 
the  circumstances  before  mentioned,  by  a  person  having  settled 
his  estate  with  a  power  of  revocation,  is  valid,  although  the  power 
of  revocation  is  not  executed,  for  the  settlement  is  defeated  by 
the  force  of  the  statute  of  Elizabeth.  But  any  conveyance  exe- 
cuted by  a  husband  in  favour  of  his  wife  or  children  after  marriage, 
wliich  rests  wholly  on  the  moral  duty  of  a  husband  and  parent  to 
provide  for  his  Avifc  and  issue,  is  voluntary,(s)  and  consequently 
the  prior  settlement  would  not  be  void  as  against  such  a  convey- 
ance'. 

12.  And  the  purchaser  must  have  contracted  for  the  interest, 
or  an  estate  or  right  out  of  the  interest,(0  to  which  the  vendor 
would  be  entitled  in  case  the  iirst  deed  were  void.  Thus,  in  a 
case  mentioned  by  Sir  Edward  Coke  in  his  Commentary  on  Lit- 
tleton,(^(.)  A.  had  a  lease  of  certain  lands  for  60  years,  if  he  had 
lived  so  long,  and  forged  a  lease  for  90  years  absolutely,  and  he, 

by  indenture  reciting  the  forged  lease,  for  valuable  con- 
£  *234  ]  sideration,  Ijargained  and  sold  *the  forged  lease,  and  all 

his  interest  in  the  land,  to  B.  Sir  Edward  Coke  adds, 
that  it  seemed  to  him  that  B.  was  no  purchaser  within  the  statute 

{q)  Stephens  v.  Olive,  2  Bro.  C.  C.  90;  King  v.  Brewer,  ib.  93,  n.  See,  however, 
Lord  Eldon's  Argument  in  Lord  St.  John  v.  Lady  St.  John,  11  Ves.  jun.  52G;  Wel- 
lesley  v.  Wellesley,  10  Sim.  256. 

(r)  Roe  V.  Mitten,  2  Wils.  356.     See  Myddleton  v.  Lord  Kcnyon,  2  Ves.  jun.  391. 

(s)  Woodie's  case,  cited  in  Colvile  v.  Parker,  Cro.  Jac.  lo8;  Goodright  v.  Moses, 
2  Blackst.  1019;  Chapman  v.  Emery,  Cowp.  278;  Evelyn  v.  Templar,  2  Bro.  C,  C. 
148.     See  Parker  v.  Serjeant,  Finch,  140. 

(0  See  Hatton  v.  Jones,  Bui.  N.  P.  90. 

(u)  Co.  Litt.  3  b. 


OF  THE  STATUTE   13   ELIZ.    C.   5.  215 

of  27  Elizabeth,  for  he  contracted  not  for  the  true  and  lawful 
interest,  for  that  was  not  known  to  him,  for  then,  perhaps,  he 
would  not  have  dealt  for  it ;  and  the  visible  and  known  term  was 
forged ;  and  although  bj  general  words  the  true  interest  passed, 
notwithstanding  he  gave  no  valuable  consideration,  nor  contracted 
for  it ;  and  of  this  opinion  were  all  the  Judges  in  Serjeant's  Inn, 


13.  This  is  not  the  place  to  discuss  the  statute  of  13  Elizabeth, 
c.  5,  which  avoids  fraudulent  gifts  and  settlements  to  defraud 
creditors,  and  of  course  applies  to  a  voluntary  appointment  where 
the  appointor  has  also  the  interest  ;(a;)  but  we  may  simply  ob- 
serve, that  although  a  bond  fide  voluntary  settlement  by  a  person 
not  indebted  at  the  time  to  the  extent  of  insolvency  would  be 
supported  against  creditors,  yet  if  it  contain  a  general  power  to 
the  settlor  to  dispose  of  or  mortgage  the  estate,  it  will  be  deemed 
fraudulent  as  against  creditors  by  statute  and  judgment, (y)  for  a 
power  of  revocation  in  such  a  deed  is  said  to  be  a  constant  evi- 
dence of  fraud  ;(z)  but  a  power  to  revoke  for  a  particular  purpose 
may  not  make  such  a  deed  void,  (a) 

14.  In  a  case  where  a  man  in  a  settlement  of  his  wife's  estate 
after  marriage  had  a  general  power  of  appointment,  and  in  default 
of  appointment  the  fee  was  vested  in  him,  but  both  power  and  estate 
were  sul^ject  to  a  mortgage  for  years,  an  appointment  by  him  to 
pay  tlie  mortgage  and  provide  for  liis  wife  and  children  was  sup- 
ported against  a  prior  creditor  by  covenant,  as  no  debt 
appeared  to  have  accrued  *by  breach  of  covenant  mitil  [  *235  ] 
after  the  appointment  in  execution  of  the  power.  (Z>) 

15.  Here  we  may  notice  a  very  diilcrcnt  case :  In  Jcnney  v. 
Andrews,(c)  a  power  by  will  was  executed,  and  the  donee  after- 
wards became  a  l)ankrupt,  obtained  her  certificate,  and  died ;  and 
it  was  held  that  the  claim  of  the  assignees  was  barred  by  the  cer- 
tificate, as  the  execution  of  the  power  did  not  operate  till  the 
death  of  the  donee. 

(x)  Whittington  v.  Jennings,  6  Sim.  493. 
(y)  Tarback  v.  Marbury,  2  Vern.  510. 
(z)  See  2  Ves.  132,  per  Lord  Hardwicke. 
(o)  See  Hungerford  v.  Earle,  2  Freem.  136. 
(6)  White  V.  Sansom,  3  Atk.  410. 
(c)  6  Madd.  2G4. 


216  BUGDEN  ON   POWERS. 


[  -236]  ^CHAPTER  XIV. 


OF   A   POWER  TO    APPOINT  TO   RELATIONS. 


SECTION  I. 

OP   THE  EXTENT   OF   A   GIFT   TO   RELATIONS. (1) 

2.  Includes  those  entitled  under  statute  j    9.  Most  necessitous  of  my  relations. 

of  distributions.  j  10.  Kindred,  next  of  kin,  &c.  nearest  en- 

3.  Extends  to  real  estate:  includes  mater-  titled. 

nal  relations.  11.  Family,  to  whom  it  extends. 

4.  Ainl  to  descendants.  12.  Wife  excluded  in  gift  to  relations. 

5.  A  child  in  ventre  sa  mere,  entitled.  13.  Statute  controlled  by  direction  aa  to 

6.  Near  relations,  friends,  &c.  tenancy  in  common,  &c. 

7.  Poor  relations,  &c.  within   the  same  15.  Parol  evidence  inadmissible. 

rule. 


We  Jiave  now  taken  a  general  view  of  the  whole  of  our  subject ; 
but  tlicre  is  one  power — that  of  appointing  to  relations — to  which 
some  peculiar  rules  apply,  and'which  tlierefore  requires  a  separate 

(1)  A  devise  to  A.  to  live  en,  pay  debts,  and  dispose  of  among  my  children  and 
grand- children,  as  she  pleases,  all  the  objects  must  be  named,  or  it  is  void.  Knight 
V.  Yarboro,  Gilmer's  Cas.  27.  A  devise  to  A.  for  life,  the  balance  to  be  distributed 
among  her  nieces,  in  such  manner  and  at  such  time  as  she  shall  think  proper,  A. 
cannot  disturb  the  equality  of  the  corpus  among  the  appointees,  nor  appoint  to  any 
other  than  the  class  named ;  her  power  is  over  the  quality  of  the  estate  and  the  time 
of  enjoyment.  Leibels  v.  Whateley,  2  Hill's  S.  C.  Rep.  605.  Where  a  devise  was  to 
A.  for  life  with  power  by  her  will  to  make  some  provision  or  portion  for  B.,  it  being 
within  her  discretion:  held,  that  no  Court  has  the  power  to  say  it  is  unreasonable  as 
to  the  amount  of  the  provision.  Frouty  v.  Frouty,  Bail.  Eq.  Rep.  5b0.  A  devise  to 
A.  and  on  trust  to  appoint  among  children,  is  a  trust,  and  his  power  extends  no  fur- 
ther than  to  create  an  inequalily  among  the  children.  A\'ithers  v.  Yeadon,  Richard. 
Eq.  Rep.  324.  So  a  direction  to  dispose  of  among  donor's  children,  after  gift  for  life 
to  the  devisee,  as  she  should  think  proper,  held  to  mean  all  his  children.  Hudson  v. 
Hudson,  G  Munf.  Rep.  352.  See  also  Jackson  v.  Vreeder,  11  Johns.  R.  170;  Porter 
V.  Turner,  3  Serg.  &  R.  108;  Morris  v.  Owen,  2  Call,  R.  620;  Frazier  t.  Frazier,  2 
Leigh's  Rep.  642. 


OP  A  GIFT  TO   NEAR  RELATIONS,   ETC.  217 

consideration.  The  usual  powers  in  a  settlement  are  to  appoint 
to  children,  to  create  portions,  to  jointure,  to  sell  and  exchange 
and  make  partition,  and  to  appoint  new  trustees ;  and  each  of 
these  powers  I  still  propose  to  consider  in  its  order.  This  will, 
I  hope,  practically  be  found  useful,  although  it  will  occasion  some 
slight  repetitions ;  but  in  discussing  the  general  subject  I  have 
avoided  introducing  whatever  is  peculiar  to  these  several  powers, 
except  where  it  was  necessary  in  illustration  of  general  principles. 

1.  We  may  now  proceed  to  consider  the  power  to  appoint  to 
relations.     The  observations  already  made  on  appoint- 
ments *in  general,  apply  as  strongly  to  a  power  of  ap-  [  *237  ] 
pointment  in  favour  of  relations  as  to  any  other  power, 

only,  that  it  seems  to  have  been  thought  that  a  power  of  appoint- 
ment to  relations  may  receive  a  more  liberal  construction  in  favour 
of  an  exclusive  appointment  than  a  power  to  appoint  to  cliildren.(a) 
We  need  therefore  only  inquire,  first,  what  sense  is  attached  to 
the  word  relations,  kindred,  <fec.  which  will  show  to  whom  the 
fund  will  go  under  such  a  bequest,  in  default  of  appointment ;  and, 
2dly,  To  whom  an  appointment  may  be  made  under  such  a  power. 

2.  Nothing  is  better  established  than  that  under  a  bequest  to 
"  relations,"  without  saying  lohat  relations,  the  fund  shall  go 
amongst  all  such  relations  as  are  capable  of  taking  within  the  Stat- 
ute of  Distributions  ;  and  this  has  been  adopted  as  the  best  measure 
for  setting  bounds  to  such  general  words,  for  the  relation  may  be* 
infinite, (6)  although,  in  two  early  cases,  the  Court  extended  it 
farther  ;(c)  but  these  cases  are  clearly  overruled  by  the  current  of 
authorities,  and  were  expressly  treated  as  of  no  authority  by  Lord 
Chancellor  Camden  in  the  case  of  Widmore  v.  Woodroffe.(c?) 

3.  The  same  rule  has  been  extended  to  a  devise  of  real  estate, 

(a)  Spring  v.  Biles,  1  Term  Rep.  435,  note;  and  see  Mahon  t.  Savage,  1  Rep.  t 
Redesdale,  111. 

(6)  Auon.  1  P.  Wms.  327;  Roach  v.  Hammond,  Prcc.  Cha.  401;  Crossly  v.  Clare, 
Ambl.  3^>7;  Harding  v.  Glyn,  1  Atk.  4G9;  Green  v.  Howard,  1  Bro.  C.  C.  31;  Hands 
T.  Hands,  1  Term  Rep.  437,  n.;  3  Bro.'  C.  C.  69,  cited;  Rayner  v.  Mowbray,  3  Bro. 
C.  C.  234;  Mahon  V.  Savage,  1  Rep.  t.  Redesdale,  111;  and  see  Rob.  on  Stat,  of 
Frauds,  G4,  n. 

(c)  Jones  V.  Beale,  2  Vern.  381;  and  Arnold  v.  Bedford,  cited  ib. 

(d)  Ambl.  640. 

Vol.  n.  19 


218  SUGDEN  ON   POWERS. 

and  the  relations  on  the  maternal  side  are  equally  entitled  with 
those  on  the  paternal  side,  of  equal  degree. (e) 

4.  The  same  rule,  it  seems,  Avould  be  ai)plicd  to  descendants, 
only  that  under  such  a  gift  it  would  go  to  such    relations  only  as 

were  descendants,  which  is  still  more  limited. (/) 
[  *238  ]       5.  And  a  child  in  venire  sa  mere  at  the  death  of  *the 

testator  is,  it  would  seem,  a  relation  within  the  gift,  not- 
withstanding the  point  was  once  ruled  otherwise. (^'•)(1)  The 
same  stiictncss  was  once  held  in  regard  to  a  gift  to  children,  but 
a  child  in  ventre  sa  mere  is  now  considered  a  life  in  being,  and 
even  to  answer  the  descrij)tion  of  a  child  bo)'n  at  the  very  period 
when  it  is  in  the  womb.(//)  This  case  seems  to  fall  within  the 
reason  of  the  rule. 

6.  The  construction  is  the  same  upon  the  words  "  near  rela- 
tions."(0  And  so  upon  a  trust  for  '■^friends  and  relations," 
Lord  Hardwicke  said,  that  friends  was  synonymous  to  relations, 
otherwise  it  was  absurd.  (^')  And  Lord  Rosslyn  has  decided  that 
a  bequest  to  relations  by  blood  or  marriage  was  confined  to  rela- 
tions entitled  under  the  Statute  of  Distributions,  and  those  who 
had  married  with  them,  although  he  said  he  was  not  sure  that  he 
hit  the  intention  by  it.(/)  But  upon  a  gift  to  "  my  nearest  rela- 
tions" there  is  no  uncertainty,  and  consequently  no  necessity  for 

(e)  Doe  V.  Over,  1  Taunt.  203. 

(/  )  Pierson  v.  Garnett,  2  Bro.  C  C.  38,  227.     See  8  Ves.  jun.  574,  575. 

{g)  Bennett  v.  Honeywood,  Ambl.  708. 

(h)  See  Clark  v.  Blake,  2  Bro.  C.  C.  320;  2  Ves.  jun.  673;  Doe  v.  Clarke,  2  K. 
Blackst.  399;  Blackburne  v.  Stables,  2  Ves.  &  Bea.  369;  Trower  v.  Butt,  1  Sim.  & 
Stu.  181.     See  a  curious  decision  in  Nurse  v.  Yerworth,  3  Swanst.  609. 

(i)  Whitborne  v.  Harris,  2  Ves.  527. 

(k)  Gower  v.  Mainwaring,  2  Ves.  87. 

(0  Devisme  v.  Mellish,  5  Ves.  jun.  529. 

(1)  "It  is  now  settled  according  to  the  dictates  of  common-sense  and  humanity, 
that  a  child  en  venire  sa  mere,  for  all  purposes  for  his  own  benefit,  is  considered  as 
absolutely  born.  He  takes  by  descent  under  the  Statute  of  Distributions — is  entitled 
to  the  benefit  of  a  charge  for  raising  portions  for  children — may  be  executor — have  a 
guardian  assigned — in  executory  devises  is  a  life  in  being — maybe  vouched  in  a  com- 
mon recovery."  Per  Duncan,  J.,  delivering  the  opinion  of  the  Court,  in  Swift  v, 
Duffield,  5  Serg.  &  Rawle  R.  38.  [Note  to  1st  Am.  Ed.]  See  also  Stedfast  v.  Mi- 
coll,  3  Johns.  Cas.  18;  Mai-scUis  v,  Thalkimer,  2  Paige's  Ch.  R.  35;  2  Jarman  on 
WUls,  103,  Perkin's  note(l);  Pemberton  v.  Parke,  5  Biun.  R.  601;  M'Knight  v. 
Eead,  1  Whart.  R.  213;  Per  Rogers,  J.,  p.  220. 


OP  A   GIFT  TO   NEAR  RELATIONS,   ETC.  219 

resorting  to  construction  either  to  confine  or  extend  a  description 
in  itself  sufficiently  certain.  A  brother,  therefore,  would  take  in 
exclusion  of  a  nephew,  (w) 

7.  In  a  case  in  Peere  Williams, (w)  the  bequest  was  to  poor  re- 
lations, and  a  countess,  as  a  relation  within  the  limits,  claimed  a 
share,  and  it  was  decreed  to  her,  in  regard  that  the  word  poor 
was  frequently  used  as  a  term  of  endearment  and  comJDassion, 
rather  than  to  signify  an  indigent  person  ;  as,  speaking  of  one's 
father,  one  often  says,  my  poor  father,  or  of  one's  child,  my  poor 
child.  But  the  reporter  treats  this  as  a  case  of  com- 
passion, the  countess  not  having  a  *sufficient  estate  to  [  *239  ] 
support  her  dignity.  In  a  case  before  Lord  Hard- 
wicke,  he  appears  to  have  determined,  that  where  the  bequest 
was  to  poor  relations,  it  should  not  be  confined  to  the  rule  of  the 
Statute  of  Distributions,  but  should  be  extended  to  those  that 
were  next  of  kin,  and  objects  of  (:harity(o)  although  he  held  that 
this  construction  could  not  prevail  where  the  bequest  was  to  the 
near  eat  poor  relations.  (;?)  Sir  Thomas  Scwcll,  also,  thought  that 
the  epithet  poor  was  to  be  attended  to,  but  he  would  not  extend 
the  bequest  to  relations  beyond  the  limits  ;((?)  and  Lord  Redes- 
dale  seems  to  have  made  a  similar  decision  in  the  case  of  Mahon 
V.  Savage, (r)  where  he  determined,  that  under  a  bequest  to  poor 
relations,  a  person  becoming  rich  before  the  distribution  was  not 
entitled.  However,  it  was  expressly  decided  by  Lord  Camden, 
that  the  addition  of  the  epithet  poor  or  necessitous,  or  the  like, 
does  not  vary  the  case,  but  the  will  must  be  read  as  if  the  word 
denoting  poverty  was  not  in  it,  as  there  is  no  distinguishing  be- 
tween degrees  of  povcrti/,{s)  which  we  may  oliscrve  is  a  much 
better  reason  than  lliat  given  for  a  similar  determination  in  the 
case  in  Peere  Williams.  So  where  the  bequest  was  to  the  testa- 
Cm)  Smith  V.  Campbell,  19  Ves.  jun.  400;  Brandoa  v.  Brandon,  3  Swans.  312. 

in)  Anon.  4  P.  Wms.  327. 

(o)  Attorney-general  v.  BucklanJ,  1  Ves.  231;  Ambl.  7,  cited. 

(p)  Goodinge  v.  Goodinge,  1  Ves.  231 ;  and  E'lge  v.  Salisbury,  Ambl.  70. 

{q)  Brunsden  v.  Woolridge,  Ambl.  507;  see  Isaac  v.  Defriez,  ibid.  595.  508;  and 
see  Carr  v.  Bedford,  2  Cha.  Rep.  77;  and  1  Bro.  C.  C.  38;  and  Gower  v.  Mainwar- 
ing,  2  Ves.  87.  110. 

(r)  1  Rep.  t.  Redesdale,  1.  11 ;  but  read  the  case;  and  see  White  v.  White,  7  Ves. 
jun.  423;  but  note,  there  the  bequest  was  otherwise  too  remote,  and  void. 

(s)  Widmore  v.  Woodroffe,  Ambl.  080;  1  Bro.  C.  C.  38,  n. 


220  SUGDEN   ON   POWERS. 

tor's  relations  "  fearing  God  and  walking  humbly  before  him," 
these  words*  were  rejected  by  Lord  Cowper.  And  in  a  later 
case,(0  where  it  was  to  the  relations  "  who  were  most  deserv- 
ing," the  Master  of  the  Rolls,  said,  that  he  had  no  rule  of  judg- 
ing of  the  testator's  relations,  and  could  not  enter  into  spirits,  and 
therefore  could  not  prefer  one  to  another.  Upon  the 
[  *240  ]  whole,  *then,  there  appears  to  be  great  reason  to  con- 
tend that  the  true  rule  is,  that  the  epithet  poor,  necessi- 
tous, or  tlie  like,  is  merely  nugatory,  although  certainly  there  is  a 
considerable  weight  of  authority  in  favour  of  the  contrary  doc- 
trine. (?/) 

8.  In  an  early  case(t')  of  a  devise  to  a  trustee  in  fee,  upon 
trust  to  convey  to  such  of  the  relations  of  the  testator  as  he  should 
think  best  and  most  reputable  for  liis  family,  the  Court  deemed  it 
most  reputable  for  the  family  that  the  heir-at-law  should  take  it. 

9.  The  words  "  most  necessitous  of  my  relations,"  or  similar 
words,  must  receive  the  same  construction  as  poor  relations,  (a;) 

10.  The  signification  imposed  on  the  word  relations  is  for  the 
same  reason  extended  to  a  bequest  to  "  kindred  ;"(y)  and  "  next 
of  kin"  has  likewise  received  the  same  interpretation  ;(2)  but  it 
is  now  decided,  that  upon  such  a  gift,  if  there  is  nothing  to  show 
that  the  testator  had  reference  to  the  Statute  of  Distributions,  or 
to  a  division,  as  in  the  case  of  intestacy,  the  nearest  in  kindred 
only  would  be  entitled  ;  and  that  brothers  and  sisters  would 
exclude  nephews  and  neices  from  participating  in  such  a  be- 
quest, (a) 

11.  A  similar  construction  has  been  put  upon  the  word  "  fami- 
ly," (6)  although  certainly  that  word  may,  according  to  the  con- 
text, have  different  significations  in  different  wills.     It  may  be 

(<)  Doyley  v.  Attorney-general,  4  Vin.  Abr.  485,  pi.  16.  See  Cole  v.  Wade,  IG 
Vea.jun.  27. 

(u)  See  Lewin  on  Trusts,  578,  n. 

(r)  Clarke  v.  Turner,  2  Freem.  198.     Baker  v.  Barret,  as  there  stated,  is  not  law. 

(i)  Widmore  v.  Woodroffe,  ubi  sup. 

(y)  Carr  v.  Bedford,  2  Cha.  Rep.  77;  and  see  9  Ves.  jun.  323. 

{z)  Phillips  V.  Garth,  3  Bro.  C.  C.  64. 

(o)  Garrick  v.  Lord  Camden,  14  Ves.  jun.  372;  Smith  v.  Campbell,  19  Ves.  jun. 
400;  Elmsley  v.  Young,  2  Myl.  &  Kee.  82.  780;  Withy  v.  Mangles,  4  Beav.  358. 

(b)  Cruwys  v.  Colman,  9  Ves.  jun.  319;  and  sec  Gower  v.  Mainwaring,  2  Ves.  110- 
See  Doe  v.  Joinyille,  3  East,  172. 


OP    A   GIFT   TO   NEXT   OF   KIN.  221 

restrained  to  meau  only  the  cliildren.(c)      In  one  case  Lord 

Alvanlcy,  at  the  Rolls,  construed  it  to  embrace  a  huslmnd 

of  the  party,  altliougli  he  cautiously  referred  his  *deci-  [  *241  ] 

sion  to  the  particular  case  before  the  Court  \(cV)  and  in 

a  devise  of  real  estate,  it  means,  it  is  said,  the  heir-at-law. (e) 

12.  Lord  Thurlow  has  justly  observed,  that  a  bequest  to  rela- 
tions is  not,  under  the  foregoing  construction,  rendered  totally 
inofficious,  for  the  ivife  cannot  claim,  the  statute  providing  for 
her  by  the  name  of  wife.(/) 

13.  And  as  this  construction  is  only  made  in  the  absence  of 
evidence  of  the  testator's  intention,  any  express  direction  by  him 
will  be  imperative.  Therefore,  where  the  bequest  was  to  the 
relations,  equally  to  be  divided  between  them.  Lord  Talbot  deter- 
mined that  an  unequal  distribution  could  not  be  directed  ;(^) 
and  he  accordingly  decreed  them  to  take  per  capita,  although 
under  the  statute  they  would  have  taken  per  stripes  ;(Ji)  and 
"  share  and  share  alike"  have  the  same  meaning  as  "  equally  to 
be  divided. "(i)  So  where  a  testator  explains  the  meaning  which 
he  attaches  to  the  word,  his  ^\^ll  must  be  attended  to ;  as,  where 
a  testatrix  gave  a  residue  to  be  divided  between  her  relations, 
that  is,  the  Greenwoods,  the  Everits,  and  the  Dows.  The  Everits 
were  not  within  the  degree  of  relationship  limited  by  the  statute, 
but  they  were  decreed  to  take  jointly  with  the  Greenwoods  and 
Dows,  who  were. (A:) 

14.  But  where  the  gift  w-as  to  the  wife  for  life,  and  after  his 
death  his  executors  were  to  part  the  same  to  his  next  relations, 
as  sisters,  nephews  and  nieces,  although  one  of  the  living  sisters 
had  children  living  at  the  testator's  death,  yet  as  he  had 

not  enumerated  them,  or  directed  them  to  take  *equally,  [  *242  ] 
the  fund  was  directed  to  go  according  to  the  statute. (/) 

(c)  Sec  9  Ves.  jun.  324;  Woods  v.  Woods,  1  Myl.  &  Kee.  401. 

((/)  Mac  Leroth  v.  Bacon,  5  Ves.  jun.  156;  Blackwell  v.  Bull,  1  Kee.  176. 

(e)  Wright  v.  Atkyns,  17  Ves.  jun.  255;  Doe  v.  Smith,  5  Mau.  &  Sel.  126;  Griffith 
V.  Evan,  5  Beav.  241. 

(/)  Seel  Bro  C.  C.  33. 

(g)  Thomas  v.  Hole,  For.  251.  Sec  Butler  v.  Stratton,  3  Bro.  C.  C.  367;  Wimbles 
V.  Pitcher,  12  Ves.  jun.  433;  2  Myl.  &  Kee.  793. 

(h)  See  Oke  v.  Heath,  1  Ves.  135. 

(i)  Ph  Hips  V.  Garth,  3  Bro.  C.  C.  64,    See  Elmsley  v.  Young,  2  Myl.  &  Kee.  780. 

(/c)  Greenwood  v.  Greenwood,  1  Bro.  C.  C.  32,  note. 

(0  Stamp  V.  Cooke,  I  Cox,  234.    See  2  Myl.  &  Kee.  787.  793. 

19* 


222 


SUGDEN  ON   POWERS. 


15.  It  remains  to  observe,  that  parol  evidence  is  inadmissible 
of  the  testator's  intention  not  to  conline  the  word  relations,  kin- 
dred, &c.  It  is  immaterial  that  he  knew  relations  to  mean  more 
than  next  of  kin.  It  may,  however,  be  shown,  that  the  testator 
had  relations  in  a  particnlar  place,  and  that  he  knew  them  ;  but 
the  evidence  cannot  be  acted  upon  in  opposition  to  the  words  of 
the  will.(w) 


SECTION  II. 


TO   WHAT   RELATIONS   AN   APPOINTMENT   MAY   BE   MADE. 


1.  Under  power  of  selection,  statute  not 

the  guide. 

2.  Contra  under  a  power  of  distribution. 

3.  Where  the  class  is  nearest  relations. 

6.  Harding  v.  Glyn. 

7.  Power  includes  a  gift  by  implication. 

8.  Although  it  be  a  power  of  selection. 

9.  Although  bill  filed,  donee  may  appoint. 
10.  Where  the  power  extends  to  represen- 
tatives. 


11.  In  defivult  of  appointment  the  statute 

rules. 

12.  Where  the  relations  take  as  tenants  in 

common. 
15.  Where  the  power  is  to  select,  the  gift 
is  to  those  who  survive  the  donee. 

20.  Unless  the  gift  is  immediate. 

21.  Pope  V.  Whitcorabe:  relations  at  death 

of   donee    entitled,    although   the 
power  is  to  distribute. 


1.  ^Vlthough  the  Court  of  necessity  restrains  the  import  of  the 
word  relations,  in  gifts  to  them,  yet,  where  a  party  has  a  power 
of  selecting  amongst  relations,  he  may  go  beyond  the  rule  which 
the  Court  itself  adopts,  when  the  distribution  is  made  under  its 

authority,  (n) 
[  *243  ]       *2  But  unless  the  donee  has  a  power  of  selection  he 

can  only  appoint  to  the  next  of  kin  within  the  statute,(o) 
and  therefore  a  power  to  appoint  amongst  the  relations,  and  not 
amongst  such  of  them  as  he  thinks  proper,  will  not  authorize  an 


(m)  Goodingc  v.  Goodinge,  1  Ves.  231.  See  Green  v.  Howard,  1  Bro.  C.  C.  31; 
Edge  V.  Salisbury,  Ambl.  70. 

(n)  Harding  v.  Glyn,  1  Atk.  469;  5  Ves.  jun.  501,  stated  from  Reg.  Lib.;  Supple 
V.  Lowson,  Ambl.  729;  Spring  v.  Biles,  1  T.  Rep.  435,  n. ;  Cruwys  v.  Colman,  9  Ves. 
jun.  319;  Mahon  v.  Savage,  1  Rep.  t.  Redesdale,  111;  Forbes  v.  Ball,  3  Mer.  437; 
Grant  V.  Lynam,  4  Russ.  292. 

(«)  Pope  V.  Whitcombe,  3  Mer.  689. 


OF  A  POWER  TO  APPOINT  TO  RELATIONS.         223 

appointment  to  any  who  are  not  of  the  next  of  kin.  In  a  case,(j9) 
in  which  Lord  Rcdesdalc  docs  not  appear  to  have  had  his  atten- 
tion drawn  to  this  distinction,  a  bequest  to  be  distributed  amongst 
the  testator's  poor  relations,  or  such  other  objects  of  charity  as 
should  1)C  mentioned  in  his  private  instructions,  and  no  such  in- 
structions were  left ;  he  thought  there  was  a  discretionary  power, 
and  that  all  the  testator's  poor  relations  need  not  be  included, 
but  he  rested  his  decision  on  the  gromid  that  the  testator's  design 
was  to  give  to  them  as  objects  of  charity,  and  not  merely  as  rela- 
tions. And  in  Forbes  v,  Ball,(g)  where  the  gift  was  to  the  wife, 
and  it  was  the  testator's  desire  that  she  might  dispose  of  the 
same  amongst  her  relations  as  she  by  will  might  think  proper, 
and  her  sister  was  her  sole  next  of  kin,  an  appointment  to  the 
sister  and  to  her  children  was  supported,  perhaps  on  the  ground 
that  she  had  a  power  of  selection ;  and,  therefore,  if  there  was 
only  one  next  of  kin,  the  power  authorized  the  donee  to  go 
beyond  the  limit  of  the  statute.  The  case  however  was  not  fully 
considered. 

3.  And  of  course  where  the  class  is  defined,  though  the  donee 
is  authorized  to  exclude  some,  yet  he  must  confine  himself  to  the 
class.  Therefore  a  gift  to  such  of  a  man's  nearest  relations  as  A. 
shall  appoint  confines  him  to  the  nearest  relations,  (r) 

4.  The  distinction,  that  if  the  donee  has  a  power  of  selection 
the  statute  does  not  furnish  the  rule,  has  not  always 

been  attended  to.  In  Brudsdcn  v.  'Woolridge(5)  *no  [  *244  ] 
distinction  was  made  between  two  gifts  in  separate 
wills,  one  amongst  the  poor  relations,  and  the  other  to  such  of 
the  poor  relations  as  A.,  his  heirs,  executors  and  administrators, 
should  think  objects  of  charity,  and  in  such  proportions  as  he  and 
they  should  think  fit.  Both  gifts  were  confined  to  the  next  of 
kin,  although  as  to  the  latter  A.  was  to  select  the  objects  in  the 
distribution. 

5.  But  in  the  later  case  of  Supple  v.  Lowson,(^)  where  the 
trust  was  to  pay  the  fund  amongst  such  of  her  relations,  at  such 

(jj)  Mahon  v.  Savage,  1  Scho.  &  Lef.  111. 

{q)  3  Mer.  437. 

(r)  Goodinge  v.  Goodinge,  1  Ves.  231;  Edge  v.  Salisbury,  Ambl.  70. 

(j)  Brunsden  v.  Woolridge,  Ambl.  507;  1  Dick.  3b6. 

(0  Ambl.  728. 


224  SUGDEN  ON   POWERS. 

times,  <fcc.  as  A.  iu  his  discretion  should  judge  proper,  it  was  ex- 
pressly decreed  that  A.  luid  a  discretionary  power,  and  that  he 
was  not  confined  to  make  distribution  amongst  the  testator's  next 
of  kin,  but  was  at  liberty  to  make  the  same  amongst  the  testator's 
relations  at  large,  as  he  should  think  proper. 

6.  And  this  point  was  decided  in  Harding  v.  Glyn,  although 
that  could  hardly  ))e  collected  from  the  original  report. (w)  There 
was  what  was  held  to  be  a  power  was  a  direction  to  the  wife,  who 
was  legatee  for  life,  to  give  the  fund  amongst  such  of  his  rela- 
tions as  the  should  approve  of,  and  the  Court  held  that  she  might, 
if  she  thought  fit,  include  persons  not  next  of  kin,  and  this  has 
been  ap})roved  of  by  succeeding  Judges  ;(a;)  and  the  same  point, 
approving  of  Harding  v.  Glyn,  was  decided  in  the  late  case  of 
Grant  v.  Lynam.(2/) 

7.  In  cases  of  this  nature  the  Court  considers  the  power  one 
which  it  is  the  duty  of  the  donee  to  execute — a  power  in  the 
nature  of  a  trust — and,  therefore,  although  there  is  no  express 
gift  to  the  objects  in  default  of  appointment,  yet  the  direction 
which  gives  the  power  is  held  at  the  same  time  by  implication  to 
create  a  trust  for  the  objects  of  the  power,  and  that  although  the 
power  be  one  of  selection. (s) 

8.  And  the  rule  was  adhered  to  in  a  case(a)  where 
[  *245  ]  the  testator  declared  that  it  was  his  will  and  desire 
that  a  third  part  of  his  estate  be  left  entirely  to  the 
disposal  of  his  wife,  among  such  of  her  relations  as  she  might 
think  proper.  Sir  W.  Grant  thought  this  case  did  not  differ 
materially  from  Harding  and  Glyn,  and  Brown  and  Higgs. 
What  the  testator  wills  and  desires  by  this  clause  is,  that  one- 
third  of  his  estate  shall  be  left  entirely  to  the  disj^osal  of  his 
wife,  among  such  of  her  relations  as  she  may  think  proper.  It  is 
to  be  left  not  to  her  disposal  generally,  but  to  her  disposal  among 
a  particular  class  of  persons,  leaving  to  her  to  select  from  that 
class  such  individuals  as  she  shall  think  proper.     You  cannot  stop 

(w)  1  Atk.  469. 

(x)  5  Ves.  jun.  501,  stated  from  R.  B.;  8  Ves.  jun.  571,  from  Mr.  Joddrell's  note; 
and  see  9  Ves.  jun.  324. 
(1/)  4  Russ.  292. 

(z)  Supra,  vol.  1,  ch.  10,  sect.  6;  Croft  v.  Adam,  12  Sim.  639. 
(o)  Birch  y.  Wade,  3  Ves.  &  Bea.  198. 


OF  A  POWER  TO  APPOINT  TO  RELATIONS.         225 

in  the  middle  of  the  clause  and  say,  all  that  he  willed  and  desired 
was,  that  she  should  have  the  disposal  of  one-third,  but  that  it 
was  no  part  of  his  will  and  desire  that  her  relations  should  have 
the  benefit  of  that  disposition.  He  thought  the  intention  was, 
that  her  relations,  at  least  such  of  them  as  she  should  designate, 
should  have  the  benefit  of  that  third. 

9.  The  Court,  where  there  has  been  no  misconduct,  although  a 
bill  is  filed  for  an  account  and  distribution,  will  not  deprive  the 
donee  of  his  power  of  selection  or  distribution,  although  it  must 
of  course  be  exercised  under  the  eye  of  the  Court.  (6)  The  Court 
itself  will  not  execute  the  discretionary  power,  (c) 

10.  But  even  where  the  donee  of  the  power  takes  the  whole 
legal  interest  in  the  fund,  yet,  if  the  author  of  the  power  intended 
a  personal  discretion  to  be  vested  in  the  party,  that 
discretion   cannot  be  transmitted  to   his  *representa-  [  *246  ] 
tives,  unless  they  are  named  in  the  power,  and  precisely 

answer  the  description. (t/) 

11.  If  the  power  be  not  executed,  the  fund  will,  without  refer- 
ence to  the  power  having  been  exclusive  or  merely  distributive, 
be  divided  amongst  those  only  who  would  take  under  a  gift  if  no 
power  had  been  created,  unless  a  contrary  intent  appear  in  the 
instrument. 

12.  In  the  Attorney-general  v.  Doyley,(e)  the  fund  was  decreed, 
in  default  of  appointment,  to  the  relations,  share  and  share  alike. 
The  gift  was  to  the  trustees  to  dispose  of  his  real  and  personal 
estate  to  such  of  his  relations  of  his  mother's  side  who  were  most 
deserving,  and  in  such  manner  as  they  thought  fit ;  and  for  such 
charitable  purposes  as  they  should  think  proper.  And  the  like 
decision  was  made  in  Harding  v.  Glyn,(/)  where  the  gift  was 
to  the  wife,  at  or  before  her  death,  to  give  unto  and  amongst  such 
of  his  relations  as  she  should  approve  of. 

{b)  Carr  v.  Bedford,  2  Cha.  Rep.  77;  Brunsden  v.  Woolridge,  Ambl.  507;  Bennett 
V.  Koneywood,  ib.  708;  Supple  v.  Lowson,  ib.  729;  Spring  v.  Biles,  1  Term  Rep.  435. 
n.;  Mahon  v. Savage,  1  Rep.  t.  Redesdale,  111;  and  see  Gowerv.  Maiuwaring,  2  Ves. 
87.  110;  Cole  v.  Wade,  10  Ves.  jun.  27. 

(c)  See  5  Ves.  jun.  503;  Gower  v.  Mainwaring,  1  Ves.  87.  110. 

(rf)  Cole  V.  AVade,  IG  Ves.  jun.  27;  Walter  v.  Maande,  19  Ves.  jun.  424.  Vide 
supra,  vol.  1,  p.  147.  150. 

(f )  4  Vin.  Ab.  486;  but  reported  as  to  this  point  from  the  Register's  book,  7  Ves. 
jun.  58,  n. 

(/)  1  .\tk.  409,  supra. 


22G  SUGDEN   ON  POWERS. 

13.  But  in  Pope  v.  Wliitcouibe,  tlie  rule,  according  to  the 
report,  was  not  followed.  The  testator  directed  his  wife  to  dis- 
pose of  his  residue  amongst  his  relations,  in  such  manner  as  he 
should  think  fit :'  she  made  an  invalid  appointment,  and  the  fund 
was  divided  amongst  the  next  of  kin  per  stirpes.  But  where,  as 
in  that  case,  the  power  is  to  give  tlic  fund  aiiK^ngst  the  oljjects, 
they,  in  default  of  appointment,  take  as  tenants  in  common  and 
per  capita  ;{g-')(l)  and  although  the  statute  is  the  guide  to  the 

ol>jccts,  yet  shore  is  no  ground  upon  which,  when  the 
[  *247  ]  objects   are  ascertained,  it  should  control*  the  shares 

in  which  they  are  to  take.  This  appeared  so  doubtful 
that  I  had  the  Register's  books  searched,  when  it  appeared  that 
no  such  point  was  decided  in  Pope  v.  Whitcombe ;  so  that  the 
authorities  are  uniform. (/i)  There  is  more  difficulty  in  coming  to 
this  conclusion  in  a  case  like  Attorney-general  v.  Doyley,  where 
there  is  no  word  tantamount  to  among-st,  but  upon  the  whole 
frame  of  the  gift  an  intention  was  apparent  in  that  case  that  the 
fund  should  be  divided  amongst  the  objects,  and  when  that  is 
ascertained  equality  is  equity. 

14.  In  the  Duke  of  Marlborough  v.  Lord  Godolphin(i)  the 
power  was  to  the  wife  to  devise  and  distribute  a  fund,  of  which 
she  was  made  tenant  for  life  by  her  husband's  will,  to  and  amongst 
such  of  his  children,  and  in  such  manner  and  proportions,  as  she 
by  deed  or  will  should  appoint.  Lord  Hardwicke  observed, 
that  none  could  take  as  tenants  in  common  of  uncertain,  though 
they  may  of  unequal  shares,  and  if  there  was  anything  in  this  so 
as  to  make  them  take  as  children  of  the  testator,  he  should  incline 
that  they  should  take  as  joint-tenants.  No  words  of  division  or 
distribution  were  made  use  of  by  the  testator,  but  by  way  of  refer- 
ence to  the  division  and  distribution  to  l)e  made  l)y  the  donee  of 
the  power  ;  so  that  it  was  part  of  her  power  only,  and  not  distinct 
from  her  power,  that  imported  a  division  between  them  as  tenants 

{g)  See  Readc  V.  Reade,  5  Ves.  jun.  744;  Casterton  v.  Sutherland,  9  Vcs.  jun. 
445;  supra,  p.  206;  Fortescue  v.  Gregor,  5  Ves.  jun.  553. 

{h)  Appendix,  No.  29. 

{f )  2  Ves.  Gl ;  and  sec  Maddison  v.  Andrews,  1  Vcs.  57. 

(I)  In  Cole  V.  Wade,  IG  Ves,  jun.  27,  all  the  next  of  kin  were  second  cousins,  and 
therefore  would  have  taken  under  the  statute  per  capita. 


RELATIONS — AS  TENANTS  IN   COMMON. 


227 


in  common.      But  this  has  been  overruled  by  the  current  of 
authorities. 

15.  Where  a  life  interest  is  given  by  will  to  a  party,  with  a 
power  to  select  the  relations,  that  is,  to  such  as  he  shall  appoint, 
it  is  firmly  settled  that,  in  default  of  appointment,  the  persons  en- 
titled are  not  the  relations  living  at  the  testator's  death,  but  those 
who  arc  living  at  the  death  of  the  donee  of  the  power. 

16.  In  the  Attorney-general  v.  Doyley,(A;)  the  pro- 
perty *was  given  to  trustees  for  A.  for  life,  and  then  to  [  *248  ] 
her  issue  ;  but  in  case  of  a  certain  failure  of  issue,  the 
trustees  were  to  dispose  of  a  portion  of  the  estates  to  such  of  his 
relations,  <fec.,  who  were  most  deserving,  and  in  such  manner  as 
they  thought  fit.  The  event  happened,  and  the  power  having  be- 
come incapable  of  being  exercised,  the  Court  gave  the  fund  to  the 
relations,  excepting  only  those  tliat  were  beyond  the  third  de- 
gree ;  and  the  Master  of  the  Rolls  held,  that  there  should  be  no 
representation  of  those  relations  who  died  in  the  lifetime  of  A., 
for,  before  her  death  no  part  thereof  vested  in  any  of  the  rela- 
tions, and  it  was  contingent  whether  they  would  be  entitled  there^ 
to  or  not. 

IT.  The  point  where  the  donee  had  only  a  life  interest  was  de- 
cided four  years  later,  in  Harding  v.  Glyn.  Lord  Eldon  says  the 
question  in  that  case  was,  was  the  property  undisposed  of  which 
she  did  not  give  to  any  one  ?  If  so,  of  necessity  it  would  have 
gone  to  those  who  were  next  of  kin  at  the  death  of  the  testator,  or 
the  representatives  of  any  who  died  in  the  life  of  the  Avife.  But 
the  Court  seems  to  have  considered  that  there  was  a  duty  imposed 
upon  the  wife,  and  that  a  latitude  was  to  be  given  to  enable  her 
to  discharge  the  duty  according  to  the  power.  Then  having  the 
power  of  naming  during  her  whole  life,  the  Court  said,  those  re- 
lations who  were  relations  at  her  death  were  to  take.  That  could 
not  be,  because  they  were  strictly  cestuis  que  trust ;  but  as  those 
to  whom  she  might  have  given  the  instant  bel'ore  she  died,  were 
those  to  whom  she  ought  to  have  given.  (/) 

18.  So  where  the  power  was  to  a  tenant  for  life  to  give  the 

(fc)  4  Vin.  Abr.  485. 

(0  8  Veg.  jun.  572,  573.     See  19  Ves.  jun.  426,  which,  if  con-cctly  reported,  shows 
that  Lord  Eldon  for  the  moment  forgot  the  rule. 


228  BUGDEN   ON   POWERS. 

fund  to  her  own  family,  the  relations  were  held  to  be  entitled  in 
default  of  appointment,  that  is,  the  next  of  kin  of  the  donee.  The 
same  person  liappcncd  to  be  next  of  kin  of  l)oth  the  testator  and  the 

donee.  That,  Sir  W.  Grant  observed,  made  no  difl'erence 
[  *240  ]    in  the  case,  for  according  to  "Flarding  v.  Glyn,  where 

a  power  of  selection  is  given  in  favour  of  the  testator's 
own  relations,  and  that  power  is  not  exercised,  the  property  un- 
disposed of  will  go  to  tlic  next  of  kin  at  the  death  of  the  party 
who  had  the  power.  Therefore,  if  even  this  had  been  a  trust  for 
the  testator's  family,  it  would  have  been  for  such  as  were  next  of 
kin  at  the  donee's  death  :  so  either  way  the  claimant  was  entitled 
to  the  whole  of  the  property,  (w) 

19.  Again,  in  Birch  v.  Wade,(w)  the  gift  by  will  was  to  trus- 
tees, for  the  wife  for  life,  and  after  her  death  in  thirds  to  his 
brother  and  two  sisters  for  their  lives ;  after  the  death  of  his 
brother  and  one  of  his  sisters  he  gave  the  tliird  of  each  to  their 
children  ;  and  as  to  the  other  third  of  the  principal,  it  was  left  to 
be  to  tlic  disj)osal  of  his  wife  among  such  of  her  relations,  as  she 
might  think  proper,  after  the  death  of  his  sisters.  It  was  held,  as 
we  have  seen,  that  this  was  a  power  in  the  nature  of  her  trust, 
and  her  relations  living  at  her  death  were  decreed  to  be  entitled, 
though  there  was  no  selection  made  by  her. 

20.  But  where  the  gift  was  in  effect  immediate,  although  a 
period  was  allowed  within  which  to  vest  the  property  in  the  rela- 
tions ;  the  distribution  not  being  suspended  by  the  existence  of 
any  preceding  estate  for  life,  those  who  were  to  take  in  default  of 
appointment  were  held  to  be  such  as  answered  the  description  of 
next  of  kin  at  the  testator's  death. (o) (I)  The  point,  however, 
does  not  seem  to  have  arisen  in  the  case,  as  the  same  persons  ap- 
pear to  have  been  the  next  of  kin  at  the  time  of  the  testator's 
death,  and  Avhen  the  decree  was  pronounced,  which  was  after  the 
power  had  ceased. (/>) 

(m)  Cruwys  v.  Colman,  9  Ves.  jun.  319;  see  Ray  v.  Adams,  3  Myl.  &  Kee.  1287. 
(7i)  3  Ves.  &  Bea.  198. 

(0)  Cole  V.  Wade,  16  Ves.  jun.  27;  Walter  v.  Maunde,  19  Ves.  jun.  424. 
(p)  See  16  Ves.  jun.  31. 

(1)  As  to  the  claim  of  the  representatives  of  a  poor  relation,  where  the  gift  is  in 
the  nature  of  a  charity,  see  Mahon  v.  Savage,  1  Scho.  &  Lef  111. 


RELATIONS  LIVING   AT   DONEE's   DEATH.  229 

21.  In  the  later  case  of  Pope  v.  Whitcombc,(</)  the 

fund  *was  given  by  will  to  the  wife  for  life,  and  then  in  [  *2o0  ] 
a  certain  contingency  the  testator  directed  her  to  dis- 
pose of  the  residue  amongst  his  relations  as  she  should  think  fit : 
the  wife  having  made  an  invalid  appointment,  it  was  insisted  that 
as  the  wife  had  only  a  power  to  vary  proportions,  the  property 
vested  in  the  testator's  next  of  kin  at  his  death.  The  cases  in 
favour  of  the  next  of  kin  at  the  death  of  the  wife  apply  only,  it 
was  said,  wliere  a  power  of  selection  is  given,  and  the  person  to 
whom  that  })ower  is  given  dies  without  having  exercised  it ;  but 
here  the  interest  vested.  The  Court,  it  is  said,  w^as  clearly  of 
that  o[)iniou,  and  decreed  accordingly,  although  the  decree,  as 
stated  in  the  report  from  the  Register's  book,  does  not  show  that 
//lis  point  was  decided. (I)  No  judgment  is  given,  and  the  case 
is  erroneously  reported,  as  we  have'seen,  upon  another  point. 

22.  Whilst  the  power  exists  there  seems  no  sound  distinction 
between  the  cases.  The  period  of  vesting  seems  to  depend  rather 
upon  the  cesser  of  the  power  by  the  death  of  the  donee  without 
exercising  it,  than  upon  the  right  of  the  donee  to  make  a  selection 
amongst  the  relations  ;  for  where  the  power  is  to  select,  yet  the 
gift  is  not  by  implication  to  those  whom  he  might  have  selected, 
but  to  a  more  confined  class,  and  this  class  might  bo  held  to  take, 
subject  to  be  defeated  by  the  power,  but  that  is  properly  conclud- 
ed by  the  authorities.  So  where  the  power  is  simply  to  distribute, 
yet  the  death  of  an  object  in  the  life-time  of  the  donee  would  en- 
able tlie  donee  to  ai)poiut  to  the  surviving  objects  ;  so  that  the 
donee  here  may  appoint  to  a  more  confined  class  than  would  take 
in  default  of  appointment. 

2o.  Since  these  observations  were  written,  the  Register's  book 
and   Minute  book  liave  been  searched  for  me,  which 
'agree  with  each  other,  but  do  not  agree  with  the  state-  [  *251  ] 
mcnt  in  the  report.     It  appears  by  the  decree  that  the 
whole  fund  was  given  to  the  personal  representatives  of  John 

{<])  3Mer.  680. 

(I)  And  see  Hands  v.  Hands,  1  Term  Rep.  437,  n.,  which  is  not  an  authority,  if 
oorectly  stated.  See  3  Bro.  C.  C.  09.  Tlie  decree  was  of  course  to  secure  the  fund; 
but  the  question,  who  was  entitled  in  default  of  appointment,  could  not  be  decided 
until  the  widow's  death. 

Vol.  II.  20 


230  SUGDEN  ON  POWERS. 

Cliildc,  the  next  of  kin  of  the  testator  living  at  the  widow's  death. 
The  testator's  next  of  kin,  therefore,  who  were  living  at  his  death, 
but  who  died  in  the  widow's  lifetime,  were  excluded  ;  and  Sir  W. 
Grant's  decree  confirms  the  rule  instead  of  breaking  in  upon  it.(r) 
There  appears,  therefore,  in  tliis  respect  to  be  no  distinction  be- 
tween a  power  of  selection  and  a  power  of  distribution. 

(r)  Appendix,  No.  29. 


OF  A   POWER  TO   APPOINT  TO   CHILDREN. 


231 


*CHAPTER  XY.  E  *252  ] 

OF   A   POWER  TO    APPOINT   TO   CHILDREN. 


14 


SECTION  I. 


OF   THE   OBJECTS   WHO   ARE   WITHIN   THE   POWER. 


Grandchildren  not  included. 

Brudenell  v.  Elwes. 

Where  a  contingent  gift  over  to  grand- 
children does  not  affect  the  previ- 
ous gift  to  a  child. 

Power  to  advance  on  marriage  for  the 
benefit  of  the  children,  authorises 
a  strict  settlement. 

1 5.  No  appointment  authorized  to  executor 

of  a  deceased  child. 

16.  But  with  the  child's  privity  a  strict 

settlement  is  valid. 

17.  Although  the  power  is  not  referred  to. 
I'J.  So  first  an  appointment,  and  then  a 

settlement  by  agreement. 
20.  Such  a  settlement  is  voluntary. 
24.  A  child  in  ventre  sa  mere  is  a  child 

living. 


25.  Where  children  of  a  second  marriage 

not  entitled. 

26.  Where  confined  to  children  living  at 

donee's  death. 

28.  Where  issue  means  children. 

29.  How  a  power  to  appoint  to  heirs  of 

the  body  may  be  executed. 

32.  Jesson  v.  Wright,  with  observations. 

33.  A  younger  child  becoming  eldest  loses 

his  right. 
35.  Where  the  eldest  child  is  considered 

as  a  younger  one. 
37.  Change  of  character  must  be  before 

portions  paid. 
39.  Power  to  appoint  to  nephews  does  not 

include  great -nephews. 


1.  It  is  upon  the  power  of  which  I  am  now  to  treat  that  by  far 
I  he  greater  proportion  of  cases  arises.  As  we  have  already  dis- 
cussed, perhaps  sufficiently,  the  general  doctrine  in  regard  to  the 
estates  which  may  be  created  under  powers,  I  shall  here  only  con- 
sider, 1st,  to  whom  an  appointment  may  be  made  under  a  power 
to  appoint  to  children.  And,  2ndly,  In  what  manner  the  fund 
may  be  settled  upon  them,  merely  premising  that  an  indefinite 
power  in  words  may,  ui)un  the  whole  instrument  taken 
together,  be  confined  to   'children. (a)     And  lastly,  I  [  *253  ] 


(a)  Bristow  v.  Warde,  vide  supra,  vol.  1,  p.  530. 


232  SUGDEN  ON  POWERS. 

shall  consider  the  construction  of  a  power  to  raise  portions  for 
chiUlrcn. 

2.  First  then,  It  is  now  estal)lishcd  that  a  jiower  to  appoint 
to  children  will  not  authorize  an  appointment  to  grandchil- 
dron.(^)(l) 

J).  In  tiie  case  of  Doe  on  the  demise  of  the  Duke  of  Devon- 
shire V.  Lord  George  Cavendish,  a  contrary  opinion  was  in  effect 
delivered,  although  it  was  pronounced  on  the  particular  circum- 
stances of  the  case.  The  case  was  shortly  this  :  Lady  Burlington 
devised  freehold  estates  to  the  use  of  the  Duke  of  Devonshire  for 
life  remainder  to  trustees  to  preserve,  remainder  "  to  the  use  of 
such  of  his  child  or  children  by  his  late  wife,  for  such  estate  and 
estates,  and  in  such  shares  and  proportions,  and  under  and  subject 
to  such  powers,  provisoes,  conditions,  restrictions  or  limitations 
as  he  should  appoint ;  "  and  in  default  of  appointment,  to  all  the 
child  or  children  of  the  Duke  by  his  wife,  as  tenants  in  connnon 
in  tail,  with  cross-remainders  between  them  in  tail,  with  re- 
mainder to  the  Duke  in  fee.  He  exercised  the  power  hj  limiting 
the  estate  to  his  two  younger  sous  for  life,  with  remainder  to  their 
issue  in  strict  settlement,  with  a  power  to  make  jointures,  &c.  In 
the  view  that  Avas  taken  of  the  case  it  was  not  necessary  to  decide 
the  point,  but  the  Court  gave  an  extra-judicial  opinion  upon  it.(c) 
They  said  there  were  three  grounds  from  which  they  were  of 
opinion  that  this  was  a  good  execution  :  1st,  From  the  subject- 

(6)  Alexander  v.  Alexander.  2  Ves.  640;  Bristow  v.  Warde,  2  Ves.  jun.  336; 
Whistler  v.  Webster,  ib.  367;  Smith  v.  Lord  Camelford,  ib.  608;  Cronipe  v.  Barrow, 
4  Ves.  jun.  681;  Adams  v.  Adams,  Cowp.  651;  Brudenell  v.  Ehves,  1  East,  442;  7 
Ves.  jun.  382;  Butcher  v.  Butcher,  9  Ves.  jun.  382;  Hewitt  v.  Lord  Dacrc,  2  Kec. 
622;  Doe  v.  VVclford,  12  Adol.  &  Ell.  61. 

(c)  4  Term  Rep.  744,  n. 


(1)  Morris  ct  ux.  V.  Owen  et  ux.  2  Call's  R.  620.  Hudson  v.  Hudson's  Adm's 
6  Munf.  R.  352,  pi.  3.— [Note  to  1st  Am  ed.] 

See  also  Drayton  v.  Drayton,  1  Desauss.  R.  827.  Dereaux  v.  Barnewell,  1  Desauss. 
R.  490.  Izard  v.  Izard,  2  Id.  303.  Smith  v.  Case,  2  Id.  123,  and  note.  Tier  v.  Pen- 
nell,  1  E(Uv.  N.  Y.  Ch.  354.  Hone  v.  Van  Shaick,  3  Id.  474.  Marsh  v.  Hague,  1  Id. 
174.  Mowatt  V.  Corow,  7  Paige's  Ch.  R.  328.  Cutter  v.  Doughty,  23  Wend.  R.  522. 
Hallowell  v.  Phipps,  2  Whart  R.  376,  and  authorities  cited  in  the  arguments  of  coun- 
sel, p.  379.  Pemberton  v.  Parker,  5  Binn.  R.  601.  Dickinson  v.  Lee,  4  Watt's  Rep. 
82.  1  Jarman  on  Wills,  70,  Perkins's  note(l).  4  Kent's  Com.  345  and  notes,  5th 
ed,,  and  note  ante  p.  236,  and  authorities  cited. 


GRANDCHILDREN — NOT  TO   CHILDREN.  233 

matter  of  the  power  ;  2ndly,  From  the  limitations  over  for  want 
of  appointment ;  3rdly,  From  the  words  in  which  the  power  was 
created.     1st,  This  was  not  money,  not  to  be  turned 
into  money,  nor  portions.     It  was  *a  limitation  of  a  [  *254  ] 
family  estate,  how  it  should  go  after  her  death.     She 
considered  how  it  should  go,  being  determined  that  it  should  go 
amongst  grandcliildren.     Suppose  she  had  only  said,  at  the  time 
of  making  her  will,  that  she  meant  it  to  go  to  the  grandchildren, 
it  must  have  been  inquired,  whether  absolutely,  or  in  strict  settle- 
ment :  if  so,  her  answer  must  have  been,  "  in  strict  settlement." 
There  are  two  kinds  of  settlement,  one  by  which  the  issue  of  the 
person  to  whom  the  first  limitation  is  made  shall .  certainly  take, 
by  giving  tlie  first  taker  only  an  estate  for  life,  the  other  by 
creating  an  estate  tail  in  the  first  instance.     But  then  there  is  a 
trick  in  law,  by  which,  when  the  issue  arrive  at  twenty-one,  the 
entail  may  be  barred.     If  this  had  been  represented  to  Lady 
Burlington,  her  answer  would  have  been,  that  she  was  sorry  for 
it,  as  it  might  be  a  mean  of  defeating  her  purpose  :  but  then  it 
would  be  answered  to  that  again,  that  there  was  a  trick  against 
that,  to  make  a  strict  settlement.     That  was  meant ;  but  to  guard 
against  all  events,  she  said,  "  I  will  put  the  father  in  my  place, 
and  give  him  authority,  if  he  choose  to   execute  it."      If  the 
words  "  in  strict  settlement"  had  been  used,  nobody  could  have 
doubted  her  meaning.     Now  all  the  words  in  the  language,  except 
those,  are  used  to  carry  this  power  as  far  as  possible,  and  to  show 
that  she  meant  an  appointment  in  strict  settlement.     Whatever 
he  might  do  with  his  own  estate  he  might  do  with  this  ;  that  was 
her  intention,  only  that  the  children  were  the  objects.     What  is 
the  use  of  powers  ?     It  implies  a  strict  settlement,  with  power  to 
make  jointures,  leases,  and  raise  portions. 

4.  Upon  the  foregoing  decision  it  need  simply  be  remarked, 
that,  as  to  the  first  ground,  it  can  at  most  only  go  in  aid  of  the 
construction  upon  the  words  of  the  power  itself;  that  the  second 
ground  bears  against  the  construction  of  the  Court,  as  the  estate 
was,  in  default  of  appointment,  given  amongst  the  children  in  tail, 
so  that  tliey  might  acquire  the  fee,  and  their  issue  could  only  take 
through  them,  and  not  as  purchasers  ;  and  that  in 
regard  to  the  "third  ground,  the  objects  were  the  cliild  [  *255  ] 
or  children,  and  the  general  words  are  merely  those 

20* 


•23-4  sur.DEN  ON  powers. 

which  arc  iisunlly  inserted  by  conveyancers,  with  a  view  to  the 
interests  to  be  given  to  the  objects  designated,  and  not  with  an 
intent  to  extend  the  power  by  implication  to  objects  not  named  in 
it,  nor  will  tlic  words  bear  a  contrary  construction,  consistently 
with  the  decided  cases. ((Z) 

5.  The  same  point  arose  in  Griffith  v.  Harrison. (e)  By  one 
codicil  an  estate,  part  freehold  and  part  copyhold,  was  given  to 
his  wife  for  life,  and  after  her  decease,  "  to  such  cliild  or  children 
of  him,  tlie  devisor,  as  slic  should  judge  most  proper  to  bequeath 
the  same  to."  By  a  later  codicil  he  gave  the  estate  to  his  wife 
for  life,  and  empowered  her  to  devise  the  same  to  any  one  or 
of  his  child  or  children,  in  such  manner,  share,  and  proportion  as 
she  should  appoint,  but  .so  as  the  said  estate  should  not  be  divided 
but  transmitted  whole  and  entire  to  his  heirs.  And  he  gave  the 
reversion  of  an  estate  adjoining  to  the  other  in  like  manner,  and 
declared  that  the  two  estates  should  be  considered  as  one  estate, 
and  be  transmitted  entire  to  his  family.  In  default  of  appoint- 
ment he  gave  the  estate  to  his  own  right  heirs.  The  widow 
appointed  the  estate  to  her  eldest  son  for  life,  remainder  to  trus- 
tees to  preserve,  remainder  to  his  children  in  strict  settlement,  in 
the  usual  way,  with  like  limitation  to  her  other  children  and  their 
issue.  The  Court  of  King's  Bench  were  equally  divided  in 
opinion  :(/)  Lord  Kenyon  and  Mr.  Justice  Grose  were  of  opinion 
that  the  children  were  the  only  objects,  and  that  the  whole  exe- 
cution of  the  power  must  be  exhausted  upon  them.  I'he  execu- 
tion which  the  wife  had  attempted  took  in  persons  who  were  not 
children  of  the  testator,  and  aifected  to  make  them  purchasers, 

and  was  not  only  not  warranted  by  the  power,  but  might 
[  *2oG  ]  give  a  descendible  quality  to  the  estate  to  *persons  out 

of  the  testator's  views,  viz.  to  the  heirs  ex  parte  mor 
terna  of  the  children  of  the  sons,  and  ex  parte  paterna  of  the 
children  of  the  daughters.  But  tliey  thought  that  in  favour  of 
the  general  intention,  the  children  might  be  held  to  take  estates- 
tail. 

On  the  other  hand,  Ashurst  and  Buller  (who  were  Judges  of 

{ci)  See  this  case  more  fully  observed  upon  in  Powell's  note  to  Fearne's  Ex.  Dev 
p.  349. 

{€)  3  Bro.  C.  C.  310. 
(/ )  4  Term  Rep.  737. 


GRANDCHILDREN — NOT   TO    CHILDREN.  235 

B.  R.  when  tlie  Duke  of  Devon's  case  was  decided)  certified  that 
the  first  son  took  for  life  only.  They  prefaced  their  opinion  with 
a  declaration  that  the  intention  of  the  person  creating  the  ])ower 
is  to  be  the  guide  in  the  construction  of  it,  and  that  a  settlement 
upon  a  child  for  life,  with  remainder  to  his  cliildren  in  strict 
settlement,  is,  in  common  parlance,  a  settlement  on  the  child. 
They  then  examined  the  words  of  the  power,  which  they  thought 
tantamount  to  a  power  to  limit  the  estate  "  in  strict  settlement ;" 
and  they  relied  €n  the  Duke  of  Devonshire's  case,  as  in  point. 
But  if  a  strict  settlement  was  not  authorized  then,  as  the  estate 
was  to  be  transmitted  entire,  they  thought  that  the  only  way  of 
making  the  different  parts  of  the  power  consistent  was  to  con- 
sider the  word  "  heirs  "  as  applicable  only  to  more  remote  de- 
scendants than  the  children,  and  to  confine  the  wife's  power  of 
appointment  to  the  children  during  their  lives  only,  in  which  casq, 
after  their  deaths,  the  estate  Avould  go  entire  to  the  right  heir  of 
the  testator. 

6.  If  the  rule  attempted  to  be  established  in  the  Duke  of 
Devonshire's  case,  and  by  Ashurst  and  Buller  in  the  last  case, 
were  to  prevail,  it  would  certainly  amount  to  this,  that  every 
power  of  appointment  to  children,  in  which  the  general  words 
manner,  share,  proportion,  &c.  are  thrown  in,  extends  to  grand- 
children. Now  it  is  incontrovertibly  settled  that  grandchildren 
are  not  objects  within  a  bare  power  to  appoint  to  children,  and  it 
would  be  highly  mischievous  if  this  broad  rule  were  to  be  cut 
down  by  a  minute  inquiry  in  every  case,  whether  there  arc  not 
words  in  the  power  tantamount  to  "  strict  settlement,"  so 
as  to  embrace  grandchildren  according  to  the  svpposcd  inten- 
tion. 

*7.  But  wc  may  fairly  consider  the  principle  upon  [  *257  ] 
which  the  extra-judicial  opinion  delivered  in  the  Duke 
of  Devonshire's  case  was  founded  as  completely  overruled.  They 
received  a  severe  shock  from  the  certificate  of  Lord  Kenyon  and 
Mr.  Justice  Grose  in  Griffith  and  Harrison.  And  in  a  subsequent 
case,  which  it  is  impossible  to  distinguish  from  the  Duke  of 
Devonshire's  case,  the  Court  of  King's  Bench,  and  afterwards 
Lord  Eldon,  held  that  the  power  did  not  authorize  a  limitation  to 
grandcliildren,  notwithstanding  that  the  usual  words  "  in  such 
parts  and  proportions,  and  for  such  estate  and  estates,  and  with 


23G  SUGDEN   ON   POWERS. 

and  under  such  charges,  i)rovisions,  conditions,  and  limitations," 
were  inserted  in  the  ])()\ver.(i,'-)  In  a  case  which  arose  since 
Lord  Kenyon's  dcatli,  Mr.  Justice  Lawrence  observed,  that  the 
Duke  of  Devonshire's  ease  was  one  that  wonhl  not  rule  any  other, 
at  least  not  exactly  similar.  That  he  had  heard  Lord  Kenyon 
express  that  opinion  of  it ;(//)  atid  neither  Lord  Thurlow(i)  nor 
Lord  Alvanley  appears  to  have  considered  the  case  as  of  much 
authority.  (A;) 

8.  If  the  case  of  Brudenell  v.  Elwes  is  to  be  treated  as  a  bind- 
ing authority,  a  power,  in  the  precise  words  of  that  in  the  Duke 
of  Devonshire's  case,  must  now  be  held  to  extend  to  children 
only.  It  would  he  idle  to  attempt  to  distinguish  the  cases  :  the 
powers  are  nearly  word  for  word  the  same  : 

Duke  of  Devonshire'' s  case,  Brudenell  y.  Elwes. 

"  To  the  use  of  such  hia  child  or  chil-  "To  the  use  of  all  or  any  the  child  or 

drcn   by  Charlotte  Lady  Cavendish,  his  children  of  the  body  of  J.  C.  on  the  body 

late  wife,  for  such  estate  and  estates,  and  of  Louisa  his  wife  lawfully  begotten  and 

in  such  shares  and  proportions,  and  under  to  be  begotten,  in  such  parts  or  propor- 

atJd   subject  to   such   powers,    provisoes,  tions,  and  for  such  estate  and  estates,  and 

conditions,  restrictions,  or  limitations  as  with  and  under  such  charges,  provisions, 

he  shall,  by  deed,  &c.  nominate,  direct,  conditions,  and  limitations,  as  they  should 

limit,  or  appoint."  by  any  deed,  &c.  direct,  limit,  or  appoint." 


[  *258  ]  *9.  The  Duke  of  Devon's  case  was  a  settlement  upon 
the  children  by  a  late  wife,  and  although  the  settle- 
ment in  Brudenell  v.  Elwes  was  in  jjursuance  of  articles  before 
the  marriage,  yet  it  was  not  executed  until  after  all  the  children 
were  born.  In  both  cases,  consequently,  at  law  grandchildren 
were  capable  of  taking  in  remainder  after  the  children  as  pur- 
chasers, if  the  power  authorized  an  appointment  to  them.  Upon 
this  .point,  therefore,  there  is  no  distinction  between  the  cases, 
and  Brudenell  v.  Elwes  was  decided  upon  the  general  rule. 

10.  Where  a  power  to  appoint  to  children  was  exercised  in 
favour  of  the  children  in  fee  over  different  portions  of  the  estate, 

(g)  Brudenell  v.  Elwes,  1  East,  442;  7  Ves.  jun.  382.  • 

{h)  See  2  East,  381,  n. 

(j)  Lowson  V.  Lowson,  2  Bro.  C.  C,  26,  cited;  and  see  ibid.  29. 
(fr)  See  4  Ves.  jun.  684. 


GRANDCHILDEEN — NOT   TO    CHILDREN.  237 

with  a  declaration  that  the  marriage  of  his  children  should  be 
with  tlic  privity  of  the  trustees ;  and  in  case  his  son  should  marry 
without  such  consent  before  he  attained  twenty-five,  then  he  should 
be  entitled  for  life  only,  and  to  the  issue  of  his  body  lawfully  be- 
gotten, in  sucli  shares  and  proportions  as  he  should  ]>j  will  or  deed 
direct  or  appoint ;  the  Judges  of  the  King's  Bench  held,  that  the 
appointment  to  the  son  in  fee  remained  unaffected  by  his  marriage 
before  twenty-five  without  the  privity  of  the  trustees. (/)  The 
power  was  confined  to  children  and  could  not  be  extended  to 
grandchildren,  and  the  proviso  moreover  would  have  infringed 
the  law  against  perpetuity,  if  the  unborn  son  had  been  made 
tenant  for  life,  with  remainder  to  his  issue,  as  purchasers. 

11.  So  Avhere(w)  under  a  power  to  appoint  to  children  the 
father  appointed  to  them  absolutely,  and  then  declared  that  she 
share  of  each  of  his  daughters  in  the  fund  appointed  was  so  ap- 
pointed, and  he  hereby  as  far  as  he  lawfully  or  equitably  might 
or  could,  ordered  and  appointed  that  th^  same  should  be  held  by 
his  trustees,  upon  the  trusts  declared  of  the  share  of  each  daughter 
in  his  residuary  personal  estate ;  and  those  trusts  were 

for  the  daughter's  separate  inalienable  *use  for  life,  [  *259  ] 
and  after  her  decease  for  her  children,  as  she  should 
appoint,  and  in  default  of  appointment  to  them  equally,  and  in 
default  of  such  children  as  the  daughter  should  appoint,  and  in 
default  of  such  appointment  to  her  next  of  kin  ;  the  Master  of  the 
Rolls  held,  that  the  words  of  appointment  were  sufficient  to  vest 
the  shares  absolutely  in  the  daughters ;  that  the  attempt  to 
restrict  their  interest  by  limitations  to  their  issue  being  inopera- 
tive, did  not  cut  down  the  absolute  appointment,  l)ut  that  it  was 
competent  to  the  donee  of  the  power  to  limit  the  interests  which 
he  appointed  to  his  daughters  to  their  separate  use,  and  to  restrain 
them  from  anticipation  or  alienation ;(«)  and  he  held  that  there 
was  no  case  of  election. 

12.  In  the  case  of  Mallison  v.  Andrews,  a  power  was  given  to 
a  woman  to  dispose  by  deed  or  Avill  of  1,300/.,  to  such  of  her 
children,  in  such  mannerjand  form,  and  to  such  uses  and  purposes^ 
as  she  should  appoint.     She  gave  a  part  to  one  child  for  life,  and 

(/)  Busby  V.  Suiter,  27  Nov.  1788;  2  Prest.  Ahstr.  164. 

(m)  Cnrver  v.  Bowles,  2  Russ.  &  Myl.  301. 

(h)  Rut  na  to  tliis  point,  vide  supra,  vol.  1,  p.  200. 


238  SUGDEN  ON  POWERS. 

after  licr  decease  the  principal  to  be  divided  among  her  children. 
And  under  the  very  full  words  of  this  power  the  ajipointmcnt,  it 
is  said,  was  held  to  l)e  well  niadc.(o)(l) 

13.  But,  even  full  as  tlieso  words  were,  yet,  unless  the  words 
"  and  to  such  uses  and  purposes,"  were  considered  as  an  inde- 
pendent clause   autliori/iiig  an   appointment  oven  to  strangers, 

which  perliaps  can  hardly  be  contended,  the  case  it 
[  *260  ]  *sliould  seem,  cannot   stand  consistently  Avitli  the  later 
determinations. 

14.  In  Alexander  v,  Alexander,  after  giving  a  power  of  appoint- 
ment in  favour  of  his  children  to  his  wife,  the  testator  directed 
that  if  she  should  think  lit  to  apply  in  her  lifetime  any  part  of  the 
fund  for  their  better  advancement,  in  marriage  or  otherwise,  in 
the  world,  then  the  trustees  should  pay  such  part  of  it,  for  the 
benefd  of  such  children,  as  his  wife  should  appoint.  Sir  Thomas 
Clarke  thought  that  the  power  would  have  enabled  the  mother, 
for  better  advancement  in  marriage,  to  make  a  strict  settlement. Qp} 

15.  Where  a  child  dies  without  any  appointment  having  been 
made  to  him,  no  part  can  be  appointed  to  his  executor  or  adminis- 
trator ;(r/)  and  indeed,  as  we  have  seen,  an  appointment  may  be 
made  to  the  surviving  children  or  child ;  so  as  to  exclude  the 
representatives  of  the  deceased  child  from  taking  any  share  under 
a  gift  in  default  of  appointment,  (r) 

16.  But  it  is  settled,  that  in  equity  a  valid  appointment  may  be 
made  to  persons  not  objects  of  the  power,  witli.  the  approbation  of 
tlie  real  object  of  the  power.     Tlierefore,  if  upon  the  marriage  ol' 

(0)  2  Bro.  C.  C.  2G,  n.;  Chan.  Hil.  1782. 

(p)  2  Ves.  640.  In  citing  this  case,  Mr.  .Justice  Duller  appears  to  have  overlookeil 
this  power;  see  2  Term  Rep.  253. 

(q)  Maddison  v.  Andrew,  1  Ves.  57:  see  Martin  v.  Swannell,  2  Beav.  249. 

(r)  Boyle  v.  The  Bishop  of  Peterborough,  1  Ves.  jun.  299.     See  1  Ves.  &  Bea.  91. 

(1)  Most  of  the  cases  in  the  notes  to  Brown  are  inaccurately  reported.  This  case 
is  introduced  as  a  note  of  a  case  cited  in -the  argument  of  Robinson  v.  Hardcastle;  but 
it  is  evident  that  the  case  intended  to  be  cited  was  Maddison  v.  Andrew,  in  1  Ves. 
57;  and  tliere  appears  to  be  reason  to  suspect,  from  the  striking  similarity  of  the 
names,  that  the  case  of  Mallison  v.  Andrews  is  merely  an  inaccurate  statement  of  the 
former,  or  that  that  case  has  been  confounded  with  s.me  other.  I  could  not  discover 
the  case  referred  to  by  Brown  in  the  Register's  book.  There  is  a  case  in  11S2,  Mal- 
lison  V.  Nesbitt,  but  that  turned  upon  a  very  different  question,  Reg.  Lib.  B.  1781, 
fol.  388.  There  is  also  a  case  of  Mallison  v.  Robinson,  Archdule,  and  others,  which 
was  a  petition  by  a  tenant  for  life  under  a  will,  and  the  question  could  not  arise  in 
thai  case,  Reg.  Lib.  B.  1782,  fol.  60. 


APPOINTMENT  TO   GRANDCHILD,   ETC.  239 

a  child,  the  parent,  by  the  marriage  settlement,  under  a  power  to 
appoint  to  children,  appoint  to  the  issue  of  the  marriage,  the 
appointment  would  be  supported  in  equity,  not  as  a  good  appoint- 
ment to  the  issue  of  the  marriage,  but  as  an  appointment  to  the 
child  himself^  and  a  settlement  of  it  by  him  ;(.s)  nor  is  it  essential 
that  such  a  settlement  should  be  made  upon  marriage.  Tlio  prin- 
ciple is,  that  the  act  operates  first  as  an  appointment ; 
*and  secondly,  as  a  settlement  by  the  appointment  of  [  *261  ] 
personalty  to  the  children  of  a  married  daughter,  who 
is  herself  the  object  of  the  power,  is  valid  if  made  with  the  con- 
currence of  the  husband, (^)  for  a  husband  can  dispOse  of  such 
property  of  his  wife  in  expectancy  against  every  one  but  the  wife 
surviving. 

17.  And  a  settlement  on  a  child  and  her  husband,  and  their 
issue,  in  strict  settlement,  was  supported  in  equity,  as  the  child 
was  an  assenting  party  to  the  settlement,  although  the  power  was 
confined  to  children ;  and  so  far  from  the  power  being  referred 
to,  the  donee  (who  was  the  original  settlor)  recited  that  he  was 
seised  in  fee,  and  conveyed  as  owner,  and  there  was  no  evidence 
that  tlic  child  was  aware  of  the  existence  of  the  power.  This  is 
the  case  of  Wade  v.  Paget,  and,  strong  as  the  circumstances  are, 
the  decision,  in  the  absence  of  fraud,  appears  to  be  right. (?/) 

18.  But  the  mere  circumstance  of  the  child  being  made  a  party 
to  the  deed,  and  not  executing  or  assenting  to  it,  will  not  be 
suSficicnt.(a;) 

19.  An  appointment  first  to  the  child,  and  then  a  settlement  by 
the  child,  in  consequence  of  an  agreement  ivilh  the  father  before 
the  appointment,  upon  himself  (the  child)  and  his  children  (not 
objects  of  the  power,)  with  ju'ovisions,  by  way  of  annuity,  for 
objects  of  the  power,  luivc  been  licld  valid. (y)  There  was  a  pro- 
rision  also  for  costs.  It  was  insisted  that  the  settlement  was  a 
fraud  upon  the  power.  But  Alexander,  C.  B.,  held  otherwise. 
The  former  cases,  he  thought,  were  infinitely  stronger  than  the 

(»)  Routledge  V.  Dorril,  2  Ves.  jun.  357;  Langstone  v.  Blackmore,  Ambl.  289; 
West  V.  Berney,  1  Russ.  &  Myl.  431;  Thompson  v.  Simpson,  1  Dru.  &  War.  459; 
Goliismid  v.  GoldsmiJ,  2  Hare,  187. 

(0  White  V.  St.  Barbe,  1  Ves.  &  Bea.  399. 

(u)  1  Bro.  C.  C.  3G4. 

(i)  Brudenell  v.  Elwes,  7  Ves.  jun.  882;  Tucker  v.  Sanger,  M'Clell.  424. 

(y)  Tucker  v.  Tucker,  13  Price,  607. 


240  BUGDEN   ON  POWERS. 

present,  being  cases  of  a])pointment  under  a  power,  made  on  con- 
tract before  execution,  to  persons  not  objects  of  the  power, 
[treatinp;  tlicni  as  oj)cratin<i-]  tliroiig:li  and  by  lueans  of 
[  *2C)2  ]  aj>pointinir  to  persons  wlio  were ;  in  botli  wliicli  *cases 
the  powers  were  held  to  be  well  executed,  because  it 
was  considered  tliut  those  aj)pointnionts  might  have  l)een  made 
in  the  manner  in  which  this  very  appointment  was  made.  He 
observed  that  it  was  ingeniously  argued  that  in  this  case  the  other 
olijects  of  the  power  having  had  annuities  given  to  them  by  the 
appointor,  to  be  })aid  by  the  ai)pointee,  had  an  interest  in  the 
estate  ai»pointed,  which  might  be  defeated  by  the  incumbrances 
with  which  the  appointee  might  charge  the  estate  in  the  short 
interval  during  which  he  was  seised  of  the  fee  by  the  effect  of  the 
conveyances  making  the  appointment ;  but  the  answer  to  that 
was,  that  the  appointor  might  have  given  the  whole  fee  absolutely 
to  the  a})])ointee,  without  taking  the  least  notice  of  the  other 
objects  of  the  power ;  and  he  considered  the  annuities  as  part  of 
the  appointment. 

20.  In  a  subsequent  case,  upon  the  validity  of  the  settlement 
made  al"tcr  the  appointment  as  against  creditors, (2)  the  learned 
Judge  said  he  had  reconsidered  the  principles  on  which  he  pro- 
ceeded in  the  former  case,  and  he  saw  no  reason  to  depart  from 
them.  It  appeared  to  him  the  line  he  took  was  the  necessary 
result  of  what  had  been  done  in  the  former  cases.  In  all  those 
cases  interests  were  given  in  form  by  the  donee  of  the  power  to 
grandchildren,  who  were  not  objects  of  the  power,  because  the 
person  who  was  the  proper  object  of  the  power,  and  to  whom  the 
whole  might  have  been  appointed,  was  a  party  to  the  deed  and 
concurred  in  the  gift.  It  appeared  to  him  that  in  those  cases 
such  persons  as  were  not  proper  objects  of  the  power  must  have 
been  considered  as  taking  by  and  from  the  person  who  was  the 
proper  oVijcct  of  the  power.  He  could  view  the  settlement,  there- 
fore, as  a  voluntary  settlement  only  so  far  as  it  gave  interests  to 
his  own  children.  It  was  not  contended  that  the  small  provi- 
sions by  the  settlement  for  the  other  objects  of  the  power  were 
invalid. 

21.  This  decision  proves  that  the  settlement  is  the 
[  *263  ]  act  of  *the  object  of  the  power,  not  made  upon  a  con- 

(2)  Gutten  V.  Sanger,  2  Yo.  &  Jerv.  459. 


WHAT   CHILDREN    ARE   ENTITLED.  241 

tract  with'  the  donee  of  the  power,  but  voluutarily  proceeding 
from  himself,  and  cannot  be  sustained  as  a  settlement  for  valuable 
consideration,  except  so  far  as  the  persons  claiming  under  it  can 
establish  a  sufficient  consideration  for  it,  to  protect  it  against 
either  creditors  or  jmrchasers.  There  was  more  difficulty  in 
Tucker  v.  Tucker  than  in  the  early  cases  upon  this  point.  For 
where  the  settlement  is  considered  as  made  by  the  direction 
of  the  ol)iect  of  the  power,  it  is  virtually  his  sole  act ;  but  where, 
as  in  Tucker  v.  Tucker,  it  is  made  by  the  object  of  the  power  in 
pursuance  of  a  contract  with  the  donee  of  the  power,  the  case 
presents  some  difficulty. 

22.  The  provisions  iufavour  of  other  objects  of  the  power  in 
pursuance  of  the  contract  with  the  appointor,  would  of  course  be 
sustained  against  all  claiming  under  the  settlor,  because  they  are 
considered  as  having  been  appointed  by  the  donee  of  the  power 
himself. 


2o.  Hitherto  we  have  seen  that  children  only  are  objects  of  the 
power ;  but  it  still  remains  to  inquire  ivhat  children  come  within 
the  scope  of  the  power. 

24.  A  power  to  appoint  to  children  living  at  the  parent's  de- 
cease includes  a  child  in  venire,  sa  mere  at  that  time. (a)  This 
point  has  been  otherwise  decided  ;(6)  but  the  law  is  now  perfect- 
ly settled. (c)(1) 

25.  In  Coleman  v,  Seymour, (r/)  a  man  gave  3,000/.  to  a  mar- 
ried daughter  for  the  use  of  her  younger  children,  to  be  distribut- 
ed amongst  them  as  she  should  appoint ;  and  Lord  Hardwicke  de- 
termined, that  the  gift  did  not  extend  to  her  children 

*by  a  second  marriage  ;  and  he  was  of  opinion,  that  it  [  *264  ] 
extend  only  to  children  living  at  the  making  of  the  will 
or  at  the  fartiiest  at  the  death  of  the  testator.     This  question, 
however,  seldom  arises  upon  powers,  because  generally  an  interest 

(fl)  Beale  v.  Bcale,  1  P.  Wms.  244. 

(6)  Pierson  v.  Garnet;  Cooper  v.  Forbes,  2  Bro.  C.  C.  38.  63. 
(c)  Clarke  v.  Blake,  2  Bro.  C.  C.  320;  S.  C.  nom.  Doe  v.  Clarke,  2  H.  Blackst.  399; 
and  see  Thellusson  v.  Woodford,  4  Ves.  jun.  226.   See  also  Hale  v.  Hale,  Prec.  Cha.  50. 
((f)  1  Ves.  209.     See  Crowe  v.  Odell,  1  Ball.  &  Beatty,  449. 

(1)  See  note  (1)  ante,  p.  238. 

Vol.  II.  21 


242  SUGDEN   ON   POWERS. 

for  life  in  the  fund  is  given  to  the  parent,  with  remainder  to  his; 
unborn  children,  as  he  sliall  a])point,  in  which  case  it  is  clear  that 
the  power  embraces  all  the  children.  This  is  the  case  of  every 
common  marriage  scttlement.(e) 

26.  In  a  late  casc,(/)  where  a  fund  was  given  to  A.  for  life-, 
and  at  her  decease  to  divide  it  in  portions  as  she  shall  choose  to 
her  children,  it  was  held  tliat  the  cliildi-en  of  A.  living  at  her 
death  were  the  only  objects  of  the  power,  and  of  the  gift  by  impli- 
cation in  default  of  the  execution  of  the  power. 

27.  And  where  a  jjower  is  confined  to  such  children  as  shall 
be  living  at  the  time  of  the  death  of  the  donee  of  the  jwwer,  al- 
though the  power  is  authorized  to  ho  executed  by  deed  or  will, 
yet  a  child  to  become  entitled  under  an  appointment  must  by  sur- 
viving the  douce,  live  to  answer  the  description  of  the  objects. (,"•) 

28.  In  a  case(/i)  where  by  marriage  articles  a  fund  was  agreed 
to  be  settled  after  the  deaths  of  the  husband  and  wife,  to  go  to 
the  issue  of  the  marriage,  in  case  there  should  be  any  living  at 
the  death  of  the  survivor  of  the  parents,  as  the  husband  should 
appoint ;  and  in  default  of  appointment  then  to  such  issue  equally, 
and  if  but  one,  the  wliolc  to  go  to  such  only  child;  and  in  case 
there  should  not  l)e  any  issue  of  the  marriage  living  at  the  death 
of  such  survivor,  then  the  fund  to  go  as  the  husl)and  should  ap- 
point ; — issue  was  held  to  mean  children  only,  and 

[  *265  ]  therefore  an  a]ipointmcnt  ])y  the  *fathcr  under  the  last 
power  in  the  articles  was  supported,  as  the  only  child 
of  the  marriage  had  died  in  his  lifetime,  although  such  child  had 
left  issue  behind  him. 

29.  "Where  a  power  is  given  to  a  man  to  a})point  to  the  heirs 
of  his  body,  it  will  not,  we  have  seen,  prevent  him  from  taking  an 
estate-tail  if  the  general  intent  can  be  collected  to  give  him  such 
an  estate  ;(i)  but  still  the  power,  it  is  apprehended,  may  be  exer- 
cised amongst  any  of  his  issue  within  the  line  of  perpetuity. 

30.  A  devise  of  all  the  testator's  estate  to  his  son  and  his  chii- 

(e)  See  Baldwin  v.  Carver,  Cowp.  309;  Hughes  v.  Hughes,  3  Bro.  C.  C.  355. 
(/  )  Kennedy  v.  Kingston,  2  Jac.  &  Walk.  431. 
(g)  Bielefield  v.  Record,  2  Sim.  354. 
(/i)  Swift  V.  Swift,  8  Sim.  168. 

(i)  Doe  V.  Jesson,  2  Bligh.  1;  Doe  v.  Goldsmith,  7  Taunf.  209;  2  Marsh.  517. 
See  Lees  v.  Mosley,  1  You.  &  Coll.  589;  Martin  v.  Swannell,  2  Beav.  249. 


TO   HEIES   OF   THE   BODY.  243 

dren  lawfully  to  be  begotten,  with  full  power- for  him  to  settle 
the  same  or  any  part  tliereof,  l)y  will  or  otherwise,  on  them  or 
such  of  them  as  he  should  think  proper,  and  in  default  of  such 
issue,  to  liis  son  and  daughter  equally.  Lord  Alvauley  observed, 
in  delivering  the  opinion  of  the  Court,  the  power  given  to  the  son 
to  settle  the  estate  on  such  of  his  childret],  as  he  should  think 
proper  was  mainly  relied  upon,  and  contended  to  be  inconsistent 
with  a  devise  of  an  estate-tail  to  the  son  himself.  It  was  argued 
that  the  power  would  be  altogether  unnecessary  if  an  estate-tail 
were  already  given,  since  it  would  be  in  the  power  of  the  tenant 
in  tail  to  dispose  of  the  whole  estate  in  such  manner  as  he  should 
think  fit  by  cutting  oft"  the  entail.  But  it  may  be  observed  that 
the  power  had  some  operation,  since  it  enabled  the  devisee  to  dis- 
pose of  the  estate  to  his  children  without  going  through  the  forms 
of  a  recovery.  (A;) 

31.  In  Doe  v.  Goldsniith(/)  where  the  devise  was  to  the  son 
for  life,  and  after  his  decease  to  the  heirs  of  his  body  to  be  begotten, 
in  such  shares  and  proportions,  manner  and  form,  as  his  son,  by 
will  or  deed  should  appoint,  and  in  default  of  such  heirs  of  his 
body,  then  immediately  after  his,  the  son's,  decease  to 
another  son  in  fee  ;  it  was  held  that  the  *first  devisee  [  *266  ] 
took  an  estate-tail.  Gibbs,  C.  J.,  in  delivering  judg- 
ment, observed,  that  the  argument  was,  that  the  words  heirs  of 
the  body  could  not  have  their  usual  signification  here,  but  must 
mean  children  of  the  son  ;  for  that  when  the  testator  devised  to 
the  lioirs  of  the  body  of  the  son,  in  such  shares  as  lie  shall  appoint, 
that  is  a  gift  to  persons  who  must  be  in  esse  when  the  son  was  to 
appoint  to  them  ;  that  the  default  of  sucli  issue  must  tlierefore  be 
a  default  of  such  persons  who  could  only  be  the  children  ;  and 
that  the  testator  by  this  expression  therefore  manifestly  meant  to 
refer  to  the  same  persons  who  were  to  take  as  tenants  in  common 
under  the  appointment,  not  as  the  lieirs  of  the  body  of  the  first 
taker  in  the  ordinary  legal  sense.  There  certainly  was  much  ob- 
scurity in  the  will,  and  if  the  Court  were  compelled  to  conjecture 
what  the  testator  meant,  possil)ly  they  would  not  AvhoUy  succeed. 
Without  clearing  up  these  difliculties,  the  Court,  upon  the  general 
intent,  held  that  an  estate-tail  passed. 

(/()  Scale  V.  Barter,  2  Boa.  &  Pull.  485. 
(/)  7  Taunt.  '20'J;  2  Marsh.  517, 


244  SUGDEN  ON  POWERS. 

32.  In  Jesson  v.  Wrioht,(w)  the  devise  was  to  A.  for  life,  and 
after  his  decease  unto  tlic  lieirs  of  the  body  of  A.  issuinsj;,  in  such 
shares  and  proportions  as  he  by  deed  or  will,  Arc.  shouhl  appoint, 
and  for  loant  of  such  appointment,  to  the  heirs  of  the  body  of  A. 
issuintr,  share  and  share  alike,  as  tenants  in  common,  and  if  but 
one  child,  the  whole  to  such  only  child,  and  for  want  of  such 
issue,  to  the  testator's  right  heirs  ;  and  A.  was  held,  in  the  House 
of  Lords,  to  be  tenant  in  tail.(?i)  It  was  argued  in  favour  of 
that  construction,  that'it  was  impossible  to  contend  that  William, 
under  this  power,  might  not  have  appointed  an  estate  of  inherit- 
ance to  a  grandson  or  more  remote  issue  born  in  his  lifetime. 
Tliis,  it  was  said,  the  rule  of  perpetuity  forl)ad.  It  might  be  ad- 
mitted that  he  could  not  appoint  to  a  child,  with  re- 
[  *267  ]  mainder  to  the  issue  of  that  child,  to  take  as  a  *purchaser ; 
but  where,  as  in  this  case,  the  power  is  to  appoint  to 
heirs  of  the  body,  a  class  of  unborn  persons,  as  purchasers,  it 
may  be  exercised  by  appointing  in  the  first  instance  to  a  grand- 
child as  a  purchaser.  The  rule  of  perpetuity  forl)ids  only  a 
possibility  upon  a  possibility,  as  an  appointment  to  an  unborn  son, 
with  remainder  to  an  imborn  son  of  the  son.  Appointments  to 
grandchildren  as  purchasers  under  powers  in  marriage  settlements 
are  of  every  day's  practice.  It  was  immaterial  that  in  this  view 
the  chiklren,  &c.  must  take  l)y  purchase  ;  that  must  bo  of  neces- 
sity ;  they  could  not  take  under  William  by  an  exercise  of  the 
power.  Lord  Elton,  C,  here  observed,  that  as  to  the  distribu- 
tion under  the  power,  althougli  the  words  heirs  of  the  body,  in  a 
legal  construction  could  apjily  to  one  jierson  only,  it  might  be 
contended,  where  a  power  was  given  to  appoint  to  heirs  of  the 
body,  that  it  meant  a  class  of  persons.  The  argument  then  pro- 
ceeded to  prove  that  William  took  in  tail.  A  devise  to  A.  and 
the  heirs  of  his  body  ;  of  course  A.  takes  an  estate-tail.  A 
similar  devise  with  a  power  to  A.  to  appoint  to  any  one  of  the 
heirs  of  his  body :  Is  it  possible  to  contend  that  this  right  to 
defeat  the  estate  so  given  to  him,  and  to  make  those  take  by  pur- 
chase who,  if  the  power  remained  unexercised,  would  take  by 
descent,  can  vary  the  construction  of  the  devise  in  tail  ?     The 

(m)  2  Bligh,  1.     See  Willcox  v.  Bellaers   Turn.  &  Ru3s.  491. 
(n)  See  the  printed   reasons  for  the  appellant, 'which  were  drawn  by  the  Author 
immediately  after  the  decision  in  the  King's  Bench. 


TO  HEIRS  OF  THE  BODY.  245 

supposed  case  was  not  different  ia  principle  from  that  before  the 
Court.  In  the  one  the  estate-tail  was  given  in  the  first  instance, 
but  defeasible  by  an  exercise  of  the  power  ;  in  the  other  the 
limitation  followed  the  power.  It  was  immaterial  whether  it  pre- 
ceded or  followed.  In  the  former  case  the  children  would  take 
by  purchase  when  tlie  power  should  be  executed  in  their  favour. 
If  the  power  remained  unexercised  the  heirs  of  the  body  would 
take  by  descent.  So  in  this  case,  if  the  power  was  exercised,  the 
heirs,  being  appointees,  take  by  purchase  ;  if  no  appointment  was 
made,  the  estate  would  descend  to  the  heir,  to  whom  it  is  limited  ; 
and  the  cases  of  Scale  and  Barter  and  Doe  and  Gold- 
smith were  relied  upon.  The  Lord  Chancellor  *ob-  [  *268  ] 
served,  that  the  argument  supposed  that  the  donee 
might  appoint  among  grandchildren,  &c.  to  the  remotest  posterity. 
That  he  should  have  tliougbt  impossible  if  he  had  lived  two  hun- 
dred years  ago  ;  to  which  the  counsel  replied,  that,  keeping  within 
the  rule  of  perpetuity,  the  donee  might  have  appointed  to  any 
the  remotest  heir  of  the  body. 

On  the  other  side  it  was  argued  that  children  only  were  in- 
tended to  take.  Heirs  of  the  body  could  not  here  consistently 
mean  all  generations  of  issue,  as  in  case  of  an  estate-tail.  The 
donee  of  the  power  could  not  have  appointed  so  as  to  give  indefi- 
nitely to  his  issue  for  ever.  William  could  not  have  appointed 
to  his  grandson,  great-grandson,  &c.  The  clear  intent  was  that 
ho  should  limit  to  the  children  living  at  or  before  his  death. 
Could  he  pass  by  the  existing  generation  and  appoint  to  a  future 
descendant,  however  remote  ?  That  was  forbidden  by  the  law 
against  perpetuities. 

Lord  Elton  in  ultimately  giving  his  opinion  observed,  that  heirs 
of  the  body  mean  one  person  at  any  given  time,  but  they  compre- 
hend all  the  posterity  of  the  donee  in  succession.  William  there- 
fore could  not,  strictly  and  technically,  appoint  to  heirs  of  the 
body.  It  had  been  powerfully  argued  that  the  "appointment  could 
not  be  to  all  the  heirs  of  the  body  in  succession  for  ever,  and 
therefore  that  it  must  mean  a  person  or  class  of  persons  to  take 
by  purchase  ;  that  the  descendants  in  all  time  to  come  could  not 
be  tenants  in  common  ;  that  heirs  of  the  body  in  the  gift,  in  de- 
fault of  appointment,  must  mean  the  same  class  of  persons  as  the 
heirs  of  the  body  among  whom  he  had  before  given  the  power  to 

21' 


246  SUGDEN   ON   POWERS. 

uppoint ;  and  inasmuch  as  you  here  find  a  child  described  as  an 
licir  of  the  lx)dy,  you  arc  therefore  to  conclude  that  heirs  of  the 
body  mean  nothing  but  cliildrcn.  Lord  Rcdesdale  said  that  in 
other  cases  a  similar  ])ower  of  appointment  had  been  held  not  to 
overrule  the  legal  sense  of  words  of  settled  meaning.  The  Court, 
it  will  l)e  observed,  did  not  give  any  opinion  to  what  extent  the 
power  might  be  exercised  ;  but  as  the  arguments  and  the  opinions 
of  the  Judges  throw  great  light  upon  the  subject,  the 
[  *2Gy  ]  'author  thought  they  would  be  acceptable  to  the  learn- 
ed reader. 

33.  Where  the  estate  is  settled  on  the  eldest  son,  and  subject 
to  that  a  power  is  given  of  appointing  portions  to  the  younger 
children,  a  younger  child  who  becomes  the  eldest  before  receiving 
his  portion  is  not  within  the  power  ;(o)  but  he  must  become  an 
eldest  or  only  son  in  the  sense  of  the  settlement,  although  not 
fully  expressed,  to  exclude  him  from  a  portion ;  that  is  he  must 
take  the  estate  provided  by  the  settlement  for  the  eldest  or  only 
son.(;?)  So  where  a  power  was  given  to  appoint  a  sum  amongst 
younger  children,  provided  that  the  eldest  son,  or  the  son  possess- 
ing the  estate  should  have  no  share  of  it  and  an  appointment  was 
made,  nominatim,  to  Anthony,  the  second  son,  and  the  other 
younger  children,  and  after  the  appointment  Anthony  became  the 
eldest  son  by  the  death  of  his  elder  brother,  and  the  estate  de- 
scended upon  him.  Lord  Thurlow  held  that  Anthony  could  not  take 
any  part  of  the  fund,  although  the  appointment  was  not  re- 
voked. (7) 

84.  But  in  a  case  where  provision  was  made  by  a  private  act 
of  Parliament  for  an  eldest  son,  and  a  power  was  given  to  the 
father  to  appoint  a  sum  amongst  his  younger  children,  "  Stephen, 
Martha,  and  Catherine,"  and  Stephen,  by  the  death  of  his  elder 
brother,  became  entitled  to  the  provision  made  for  the  eldest  son, 
and  then  the  father  appointed  a  considerable  sum  to  Stephen  under 
his  power,  Lord  Talbot  said  this  case  arose  upon  an  act  of  Parlia- 

(0)  Chidwick  V.  Doleman,  2  Vern.  528;  Lord  Teynham  v.  Webb,  2  Ves.  108:  vide 
supra,  cb.  11,  sect.  2;  and  see  Lady  Lincoln  v.  Pelham,  Bowles  v.  Bowles,  Leake  v. 
Leake,  U  Ves.  jun.  16(3.  177.  477;  Savage  v.  Carroll,  1  Ball  &  Beatty,  265;  and 
Matthews  V.  Paul,  3  Swanst.  328;  Peacock  v.  Pares,  2  Kee.  68y. 

(p)  Spencer  v.  Spencer,  8  Sim.  87. 

(5)  Broadinead  v.  Wood,  1  Bro.  C.  C.  77. 


ELDEST   CHILD   DEESIED   A   YOUXGER   ONE.  247 

ment,  in  which  the  intent  shall  prevail  against  the  very  words,  but 
then  the  intent  must  be  plain  and  clear.  Now  Stephen  was  in- 
deed called  a  younger  child  in  the  preamble,  but  when  the  power 
was  given,  it  was  not  to  appoint  amongst  the  younger  children 
generally,  but  to  Stephen,  Martha,  and  Catherine ; 
and  *he  held  the  appointment  to  Stephen  to  be  a  valid  [  *2T0  ] 
exercise  of -the  power,  (r)  Upon  this  statement  of  the 
ease,  then,  it  seems  to  establish  this  principle,  that  where  a 
younger  child  is  included  by  his  name  in  a  power,  he  will  con- 
tinue an  object  of  the  power,  although  he  lose  his  character  of 
younger  son.  But  Lord  Talbot  principally  distinguished  this  case 
from  that  of  Chadwick'  and  Doleman,  on  the  ground  that  there 
the  question  was  between  the  eldest  son,  become  so  by  his 
brother's  death,  and  the  other  younger  children  ;  whereas  in  the 
case  before  him,  Stephen  was  the  only  child  left,  and  the  dispute 
was  between  him  and  the  administrator  of  a  deceased  child,  so 
that  this  case  cannot  perhaps  be  relied  on  as  an  authority  for  the 
general  principle,  which  at  first  sight  it  seems  to  establish  ;  and 
certainly  if  the  rule  in  Chadwick  v.  Doleman  is  the  law  of  the 
Court,  the  question  in  these  cases  ought  to  be,  not  whether  the 
younger  children  are  in  the  instrument  creating  the  power  called 
•'  younger  cliildren,"  or  by  their  proper  names,  but  whether,  upon 
the  whole  instrument  taken  together,  they  are  treated  as  younger 
children  ;  and  whether,  judging  from  the  evidence  to  be  collected 
from  the  instrument  itself,  a  portion  would  have  been  provided 
for  them  if  they  had  stood  in  the  place  of  their  eldest  brother. 

35.  These  eases  profess  to  go  merely  upon  the  intention  that 
the  child  is  not  a  younger  child  within  the  power,  and  by  parity 
of  reason  where  an  eldest  child  is  in  efiect  a  younger  child,  with 
reference  to  the  estate,  he  may  Ijc  an  object  of  a  power  to  appoint 
to  younger  children  ;  as,  where  an  estate  is  settled  on  the  son, 
and  there  is  an  eldest  daughter,  there,  although  in  point  of  age 
the  daughter  is  eldest,  yet  it  is  well  settled  that  the  son,  as  he 
takes  the  estate,  though  not  so  by  promogeniture,  shall  be  con- 
sidered an  eldest  child,  and  the  daughter,  though  eldest,  shall  be 
taken  as  a  younger  child  ;(.s)  so  an  elder  son  unprovided  for  may 

(r)  Jermyn  v.  Fellows,  For.  93. 

(s)  Picrson  v.  Garnet,  2  Bro.  C.  C.  38;  and  see  Beale  v.  Beale,  1  P.  Wins.  244; 
Lord  Teynliam  v.  Webb,  '2  Ves.  210;  Heneage  v.  Hemlocke,  2  Atk.  456;  Billingsley 
V.  Wells,  3  Atk.  221. 


248  SUGDEN   ON   POWERS. 

take  under  a  provision  for  younger  children  ;  for  it  is 
[  *2T1  ]  *to  the  intention  and  not  to  the  words  elder  or  yomu^er 
that  the  Court  adverts.  (^) 

36.  And  younger  son  or  daugliter,  means  younger  son  or 
younger  daughter  ;  and  in  a  shifting  clause,  for  example,  those 
words  may,  in  favour  of  the  intention,  be  construed,  "  a  son 
younger  than  a  son,  or  a  daughter  younger  than  a  daughter,  from 
whom  the  estate  is  to  shift." (") 

o7.  But  of  course  the  change  of  character  must  take  place 
before  the  receipt  of  the  money  ;  clearly  a  younger  son  becoming 
eldest,  and  taking  the  estate  itself,  cannot  Ijc  called  upon  to  re- 
fund a  })ortion  received  out  of  the  estate  whilst  he  was  a  younger 
child,  and  in  that  character. (a;) 

38.  It  remains  to  observe,  that  in  the  case  of  Hall  v.  Hewer(?/) 
Lord  Hardwicke  laid  it  down,  that  there  was  no  case  where  the 
Court  had  considered  a  youngest  child  as  an  eldest,  but  between 
parent  and  children,  or  those  who  stand  in  loco  pa)'entis,(z')  but 
this  distinction  does  not  appear  to  be  attended  to  at  the  present 
day. 

39.  This  section  may  be  closed  with  the  observation,  that 
powers  to  appoint  to  nephews,  or  any  other  class  of  persons,  will 
be  construed  by  the  same  rules  as  are  applied  to  a  power  to  ap- 
point to  children.  Thus,  as  mider  such  a  power,  grandchildren 
are  not  the  objects,  so  a  power  to  appoint  to  nephews  cannot  be 
extended  to  great  nephews; (a)  yet  as  a  settlement  made  in 
favour  of  the  grandchildren,  with  the  assent  of  the  child,  is  valid, 
so  a  like  provision  may  be  made  in  the  like  case  for  great 
nephews. 

(/)  Dcke  V.  Doidge,  2  Ves.  203,  cited  from  Mr.  Noel's  note  ;  and  see  Emery  v. 
England,  3  Ves.  jun.  232, 

(u)  See  Scarisbrick  v.  Eccleston,  6  Clar.  &  Fin.  598. 

(x)  Sec  Graham  v.  Lord  Loudouderry,  2  Ves.  TJ'J.  531.  cited;  but  see  ibid,  212; 
and  see  Lodor  v.  Lodor,  ibid.  530;  Coleman  v.  Seymour,  1  Ves.  209;  Lady  Lincoln  v. 
Pelham,  10  Ves.  jun.  166;  Leake  v.  Leake,  ib.  477. 

(j/)  Ambl.  203. 

(z)   And  see  Lord  Teynham  v.  Webb,  2  Ves.  198;  10  Ves.  jun.  174. 

(a)  Falkner  v.  Butler,  Ambl.  614. 


HOW  MARRIED   DAUGHTER'S   SHARE    APPOINTED. 


249 


•SECTION  II.  [  *272  ] 

OF   THE   MANNER    IN    WHICH    THE   FUND    MAY    BE   SETTLED. 


2.  Particular  interests  and  contingencies 

valid. 

3.  Where  trustees  may  be  interposed. 

4.  Reveisionary  interest  not  sufficient  for 

a  portion. 

5.  A  power  to  a  child  to  raise  a  sum  valid, 
t).  How  fund  may  be  appointed  to  a  daugh- 
ter. 


8.    ^  Appointment  to  separate  use  of  daugh 
>      ter,  valid:  whether  estate  real  or 
12.  5      personal. 

9.     Appointment  to  tlie  husband  is  valid. 
14.  Conditions,  how  far  valid. 

16.  Conditions  invalid. 

17.  Power  to  appoint  to  parents  or  their 

children  discretionary. 


1.  We  are  now  to  consider  in  what  manner  the  fund  may  be 
settled  on  tlie  children,  although  much  upon  this  sulyect  has  been 
necessarily  anticipated  in  considering  what  estates  may  ho  cre- 
ated under  powers  in  general, (6)  and  particularly  how  the  pro- 
perty may  be  appointed  where  there  is  but  one  object,  (c) 

2.  A  power  to  appoint  a  fund,  in  such  proportion  as  a  party 
shall  think  fit,  implies  that  he  may  apportion  it  out  in  such  manner 
as  he  pleases,  consequently  he  may  give  an  interest  for  life  in  a 
particular  share  to  one  child,  or  limit  the  capital  of  the  same 
share  to  another,  or  even  go  so  so  far  as  to  limit  to  a  third  child 
upon  a  contingency,  provided  he  doles  out  the  whole  in  this 
various  way  among  all  the  children  only.  The  power  docs  not 
require  that  he  should  distribute  it  in  gross  sums,  and  give  each 
child  an  absolute  interest  in 'that  gross  sum,  for  sucli  a  power  en- 
ables the  gift  of  particular  interests,  and  the  appointment  of  such 
interests  ;(a)  and  a  general  power  to  apportion  lands 
receives  'the  same  construction  ;  therefore,  life-estates  [  *273  ] 
or  rent  charges  may  in  like  manner  be  given  to  any  of 

the  children. (6)  Where  under  such  a  power  it  is  wished  to 
settle  the  estate  on  the  eldest  son,  subject  to  portions  for  the 
younger  children,  it  is  usual  to  limit  difterent  parts  of  the  estate 

(6)  Supra,  vol.  1,  p.  476. 

(c)  Supra,  uol.  1,  p.  498. 

(a)  Alexander  v.  Alexander,  2  Ves.  G40;  Bristow  v  Warde,  2  Ves.  jun.  336. 

(i)    Tliwaites  v.  Dye,  2  Vcrn  supra  80.     Vide  supra,  vol.  1,  p.  512, 


250  SUGDEN   ON   POWER?. 

to  each  of  the  young-cr  chiklreii  dui-iiig  a  term,  with  remainder 
as  to  all  to  the  eldest  sou  in  fee,  and  to  give  him  a  power  of 
redeeming  the  estate  by  paying  the  portions  intended  to  be  pro- 
vided for  the  younger  children,  nearly  in  the  same  way  as  in  a 
common  mortgage  for  a  term  of  years. 

3.  In  Trollope  v.  Linton, (r)  where  the  power  was  to  appoint 
to  the  use  of  such  one  or  more  of  tlio  children  for  such  estate  or 
estates,  in  such  parts,  shares  and  proportions,  and  in  such  manner 
and  form  as  tlie  husband  siiould  appoint,  and  he  appointed  to 
trustees  for  oOO  years  to  raise  ])ortions  for  the  younger  children, 
Sir  John  Leach  held  that  creating  this  term  in  trustees  was  a 
good  legal  exercise  of  the  power,  and  that  the  words  "  manner 
and  form"  enabled  him  to  give  equitable  estates  to  his  children. 
The  point,*  however,  did  not  call  for  a  decision,  as  the  power  was 
an  equitable  one, 

4.  But  under  such  a  power,  a  merely  reversionary  interest  cannot 
be  given  to  any  one  child,  as  it  is  intended  for  a  provision. (t^) 

5.  An  appointment  may  be  made  to  a  child  for  life,  with  a  power 
to  that  child  by  sale  or  mortgage  to  raise  1,000/.  to  be  payable  as 
he  shall  appoint,  for  that  is  in  effect  only  appointing  1,000/.  to  the 
child  :  it  is  in  the  nature  of  property,  and  cannot  be  considered 
as  a  delegation  of  the  power.(e) 

6.  An  appointment  under  the  power  to  a  daughter  for  her 

separate  use,  independently  of  her  husl)and,  is  so  far 
[  *274  ]   *from  being  an  objection,  that  it  is  more  stricily  carrying 

into  execution  the  will  of  the  donor ;(/)  and  this  is  still 
more  clearly  authorized  where  the  power  is  to  appoint  in  such  mari- 
ner as  the  donee  pleases.  (,«•) 

7.  In  one  case(/i)  a  father  having  a  power  to  appoint  to  his 
children,  gave  the  interest  of  a  portion  to  the  husband  of  one  of 
his  daughters  for  life,  and  after  his  decease,  the  capital  to  the 
dauglitcr  herself.     Lord  Rosslyn  said,  that  if  he  had  given  to  the 

(c)  1  Sim.  &  Stu.  477,  supra,  vol.  1,  p.  512. 

('/)  Alexander  v.  Alexander,  ubi  sup.  See  Duke  of  Devonshire  v.  Lord  G.  Caven- 
dish, '1  Terra  Rep.  744,  n.;  but  see  vol.  1,  p.  568. 

(ej  Brudenell  v.  Elwes,  1  East,  442.  (/)  Alexander  v.  Alexander,  2  Ves.  G40 

(?)  MadJison  v.  Andrew,  1  Ves.  59;  and  see  Pitt  v.  .lackson,  2  Bro.  C.  C.  51; 
Smith  V.  Lord  Camelford,  2  Ves.  698.  Crompe  v.  Barrow,  4  Vei.  jun.  631;  Wilson 
V,  Grace,  Rolls,  MS.     Vide  supra,  vol.  1,  p.  203. 

(/t)  Bristow  v.  Warde,  2  Ves.  jun.  336. 


HOW   MAREIED   DAUGHTER'S   SHARE   APPOINTED.  251 

wife  for  life,  and  in  case  the  husband  should  survive,  to  the  hus- 
band,that  would  have  been  a  substantial  gift ;  for  it  was  admitted, 
a  gift  for  life  was  sufficient.  Ho  liad  done  the  same  thing  ;  for  the 
husband  would  in  that  case,  in  point  of  law,  liave  taken  during  the 
life  of  the  wife.  The  insertion  of  the  name  of  the  husband  i)rior 
to  that  of  the  wife,  was  doing  no  more  than  if  he  had  given  to  the 
wife  first.  The  intention,  therefore,  not  being  to  illude,  but  to 
give  in  effect  such  estate  as  a  married  woman  could  take,  viz.  for 
the  benefit  of  the  husband  as  long  as  the  coverture  should  continue, 
was  not  illusory.  But  the  Chancellor  principally  relied  upon  the 
circumstance  of  the  daughter  having  been  i)rovided  for  by  the 
father  in  his  lifetime. 

Now  it  must  be  observed,  that  on  the  preceding  case  Lord 
Rosslyn  did  not  mean  to  say  that  the  excess  beyond  the'wife's  life 
would  not  be  considered  void  in  case  her  husband  survived  her. (t) 
And  we  should  be  cautious  how  we  admit  tlic  doctrine 
that  the  fund  may  be  *ap})ointed  to  the  husband  even  [  *275  ] 
during  the  joint  lives  of  him  and  his  wife,  for  he  is  no 
object  of  the  power,  and  although,  as  it  was  observed  by  the  Court, 
the  husband  will  take  during  the  life  of  the  wife,  where  it  is  given 
to  her,  yet  he  will  take  in  ^  different  right,  and  subject  to  equities, 
to  which  he  would  not  otherwise  be  liable.  If  he  take  under  a 
direct  appointment  to  himself,  he  may  be  considered  as  the  absolute 
owner  of  it ;  whereas,  if  he  merely  take  in  his  marital  right,  his 
wife  would,  in  certain  cases,  have  her  equity  for  a  settlement  out 
of  it,  whicli  would  bind  his  assignees,  if  lie  should  become  l)ank- 
rupt,  his  creditors  claiming  under  an  assignment  from  liim,  and 
persons  claiming  under  him  without  any  valuable  consideration  ; 
although  not  purchasers  for  a  valuable  consideration  ;(j)  and 
where  the  power  rides  over  real  estate,  and  operates  under  the 
Statute  of  Uses,  it  seems  clear  that  an  appointment  to  the  husband 
would  not  invest  him  with  the  legal  estate,  he  not  being  an  object 
designated  in  the  power.  But  it  is  probable,  that  under  such  an 
appointment,  where  the  husband  can  take,  he  would  be  held  to 
take  in  exactly  the  same  manner  as  he  would  have  done  had  the 
fund  been  appointed  to  his  wife. 

(t)  See  Burleigh  v.  Pearson,  1  Ve3.  281, 

(;')  See  Elliott  v.  Cordell,  Aguilar,  v.  Aguilar,  5  Madd.  149. 414;  Stanton  v.  Hall, 
2  Russ.  &  Myl.  175. 


252  SUODEN  ON  POWERS, 

8.  Thus  far  as  to  the  quantity  of  interest  which  may  be  given 
to  each  child,  and  we  may  now  consider  what  conditions  may  be 
imposed  by  tiie  person  executing  the  power. 

9.  In  Parsons  v.  Pa^sons,(^•)  the  fund  was  settled  for  the  portions 
of  the  young-er  children,  at  such  times  and  in  such  ]»roportions,  and 
subject  to  such  provisions  and  conditions,  and  in  such  manner  and 
form,  as  the  parents  should  appoint,  and  in  flefault  of  apj)ointment 

to  them  equally.  Lord  Ilardwicke  observed,  tliat  the 
[  *2TG  ]  appointment  *might  be  made  subject  to  such  provisions 

and  conditions  as  they  should  think  fit,  which  though 
equity  would  construe  to  be  such  as  were  reasonable,  yet  if  upon 
marriage  of  one  of  their  daughters,  they  had  appointed  a  partic' 
ular  sum,  with  conditions,  that  if  such  daugliter  left  no  issue  it 
should  go  to  the  other  children,  it  must  have  waited  until  it  was 
known  whether  she  did  or  did  not  leave  issue.  But  this  is  hardly 
a  good  c;cample  of  a  condition,  for  this  was  a  limitation  over  in  a 
contingent  event,  which  would  have  Ijeen  authorized  under  the 
above  case,  if  the  words  such  provisions  and  conditions  had  been 
inserted  in  it. 

10.  In  Pawlet  v.  Pawlet,(/)  Lord  Hardwicke  laid  it  down,  that 
where  a  father  has  only  a  power  of  Appointment,  or  distributing 
portions  which  are  to  be  raised  at  all  events,  he  cannot  annex  any 
condition  to  the  payment  of  any  share  which  he  appoints. 

11.  A  parent  having  a  power  to  appoint  a  fund  amongst  his 
children,  cannot,  unless  he  has  a  power  to  annex  such  a  condition, 
restrain  a  child's  share  to  the  payment  of  a  particular  debt,  for 
there  may  be  a  defence  to  that  debt.  Therefore  where  a  father 
appointed  a  share  to  his  daughter,  to  pay  a  debt  of  her  husband, 
for  which  the  testator's  son  was  surety,  Lord  Hardwicke  set  it 
aside.  He  considered  it  bad,  because  not  given  for  her  benefit, 
altliougli  Ijy  possibility  the  discharging  her  husband's  debts  might 
tend  thereto.  It  might  be  otherwise,  (m)  And  of  course  he 
cannot  annex  any  condition  for  his  own  benefit  ;(w)  nor  can  the 
property   appointed  be  exempted   by  the  donee  of  tlie   power 

(k)  9  Mod.  464. 

(/)  1  Wils.  422.     Vide  supra,  vol.  1,  p.  578;  infra,  p,  301. 

(m)  Burleigh  v.  Pearson,  1  Ves.  281 ;  and  see  Alexander  v.  Alexander,  2  Vea.  640. 

(71)  Roberts  v.  Diiall,  2  Eq.  Ca.  Abr.  6G8,  pi.  lU;  App.  No.  17.  See  Bailey  v. 
Lloyd,  lluss.  330.  342;  the  father's  covenant,  which  was  satisfied  by  the  appointment, 
appears  to  have  extended  to  the  sums  in  settlement. 


CHILDREN   IN   PARENT'S   PLACE.  253 

from  the  debts  *of  the  appointee,  but  it  must  be  left  to  [  *277  ] 
take  the  fate  of  being  his  property,  and  sulyect  to  be 
come  at  as  his  creditors  shall  think  fit  ;(o)  and  in  these  cases  the 
appointment  is  valid,  and  the  condition  altogether  inoperative. (/>) 

12.  Of  course  where  a  power  is  given  to  appoint  a  fund  amongst 
certain  persons  or  their  children,  a  discretion  is  given.  The 
donee  may  direct  to  Wiom  the  fund  should  be  given,  the  parents 
or  the  children. (r/) 

lo.  In  a  late  case,(v)  when  a  testator  gave  a  fund  to  his  wife 
for  life,  and  after  her  death  directed  it  to  be  divided  amongst  his 
cousins,  whom  he  named  by  classes,  in  such  proportions,  &c.,  as 
his  wife  should  appoint,  and  in  default  of  appointment,  he  gave 
the  same  unto  his  said  cousins  equally ;  and  it  was  his  will  "  that 
the  child  or  children  of  such  of  my  cousins  as  are  now  or  the  time 
of  my  decease  may  be  dead,  or  of  such  of  them  who  shall  die 
during  the  life  of  my  said  wife,  shall  stand  in  the  place  of  their 
deceased  parent  or  parents,  and  be  entitled  to  such  interest  and 
benefit  as  the  parent  or  parents  of  sucli  child  or  children  would 
have  been  entitled  to  by  this  my  will,  in  case  he  or  she  had 
survived  my  wife  :"  tlie  Court  was  of  opinion  that  the  children  of 
a  cousin  who  was  alive  at  the  testator's  death,  and  afterwards 
died  in  the  widow's  lifetime,  were  entitled  to  stand  in  his  place, 
and  have  such  appointment  of  shares  as  a  court  of  equity  might 
limit.  So  that  the  direction  that  the  children  should  stand  in  the 
place  of  their  parents,  was  held  to  make  them  objects 
'of  the  power  itself,  or  in  the  place  of  their  parents,  [  *278  ] 
when  the  latter  by  death  ceased  to  be  such  objects. 

14.  We  have  ali'eady  had  occasion  to  consider  in  what  cases 
appointments  may  be  made  to  the  surviving  children,  and  the 
effect  of  an  advancement  by  the  parent,  and  also  the  general  con- 
struction of  a  gift  to  children  in  default  of  appointment ;  and 
what  cases,  under  particular  limitations,  their  issue  may  stand  in 
their  place,  or  take  in  competition  with  them.(s)     We  have  also 

(o)  Alexander  v.  Alexander,  2  Ves.  640. 

(p)  And  see  Busby  v.  Salter,  supra,  279;  Spencer  v.  Duke  of  Marlborough,  supra, 
\ol.  1,  p.  180;  Daubeny  v.  Cockburn,  1  Mar.  645. 
{q)  Longmore  v.  Broom,  7  Ves.  jun.  124. 
(r)  Fox  V.  Gregg,  App.  No.  24. 
(s)  Ch.  11. 

Vol.  II.  22 


254 


SUGDEN  ON  POWERS. 


seen  in  what  cases  a  power  to  appoint  to  children  is  a  trust,  which 
the  parent  or  otlicr  donee  is  hound  to  execute. (^) 


SECTION  III. 


OF   A    rOWER   TO   RAISE   PORTIONS. 


1.  Resemble  powers  to  appoint  a  fund. 

2.  AV  hether  coiKlitioiis  can  be  imposed. 

3.  Where  all  younger  children  are  in- 

cluded. 

4.  Limitations  over,  &c.,  valid. 

5.  Portions  cannot  be  made  to  vest  before 

they  are  wanted. 

6.  Excess  in  time  of  vesting,  corrected. 
8.  >  Child  dying  before  portion  requii-ed, 

10.  5      it  sinlis. 

11.  Interest  may  be  charged. 

12.  When  raised  under  reversionary  terms. 


14.  Interest  is  applicable  for  maintenance. 

15.  Past  interest  does  not  sink  with  por- 

tion. 

16.  Rate  of  interest. 

17.  Whei-e  interest  payable  by  a  jointress- 

18.  Portions  postponed  by  a  jointure  cre- 

ated under  a  power. 
-0.  Construction  of  power  in  articles, 

21.  Implication  of  survivorship  in  articles. 

22.  Power   to   appoint   portions   not   au- 

thoi-ized  by  articles  under  general 
words. 


1.  The  usual  powers  to  a  parent  to  appoint  portions  to  be  raised 

for  the  children,  where  no  fund  will  be  in  existence 
[   *270  ]  *unless  appointed,  are  not  distinguishable  in  their  main 

features  from  powers  to  appoint  to  children  an  estate  or 
a  fund  actually  set  apart. (a) 

2.  IJut  in  Pawlet  v.  Pawlet,(6)  before  referred  to,  Lord  Hard- 
wicke  took  this  distinction,  that  where  a  father  has  only  a  power 
of  apj)ointmcnt,  or  distfibuting  portions  which  are  to  be  raised  at 
all  events,  he  cannot  annex  any  condition  to  tlie  payment  of  any 
share  which  he  appoints  ;  otherwise  it  is  where  the  portions  are 
not  to  1)0  raised  at  all  without  the  father's  appointment,  for  there 
the  father  may  annex  a  condition.  This,  however,  was  a  g-ratis 
dictum,  and  I  have  not  met  with  any  case  in  which  the  distinction 
has  been  acted  upon.  It  would  be  difficult  to  establish  such  a 
general  rule  upon  principle,  as  in  each  case  the  words  of  the 
power  must  be  the  guide  of  the  father's  appointment. 

(0  Ch.  9,  s.  3. 

(a)  Menzey  v.  Walker,  For.  72. 

(6)  1  Wils.  234.    Vide  supra,  p.  298. 


AT  WHAT  AGES   PORTIONS   MAY  BE   APPOINTED.  255 

3.  A  general  power  in  a  will  by  which  estates  are  devised  in 
strict  settlement,  for  a  tenant  for  life  to  charge  portions  for  his 
younger  child  or  children,  includes  all  the  younger  children  by 
any  marriage. (c) 

4.  If  a  sum  of  money  is  to  be  settled  upon  younger  children, 
the  donee  of  tiie  power  may  introduce  limitations  over,  clauses  of 
survivorship,  <fec.(^) 

5.  Although  a  power  is  given  generally,  yet  the  Courts,  or  at 
least  equity,  will  not  jiermit  it  to  be  exercised  so  as  to  give  a 
vested  interest  Ijefore  the  time  in  Avhich  it  was  the  intention  of 
the  parties  that  the  portion  should  vest.  Thus,  where  portions 
for  younger  children  were  to  be  raised  at  such  times  as  the  father 
should  direct,  and  he  having  a  daughter  fourteen  years  of  age, 
directed  the  trustees  to  raise  the  portion  immediately ; 

*the  daughter  died  under  age,  and  the  father  claimed  [  *280  ] 
her  portion  as  administrator ;  Lord  Thurlow  said, 
"  The  meaning  of  a  charge  for  children  is,  that  it  shall  take  place 
when  it  shall  be  wanted.  It  is  contrary  to  the  nature  of  such  a 
charge  to  have  it  raised  before  that  time.  And  although  the 
power  is  in  tliis  case  to  raise  it  when  the  parent  shall  think  proper, 
yet  that  is  only  to  enable  him  to  raise  it  in  his  own  lifetime,  if  it 
should  be  necessary.  It  would  have  Ijcen  very  proper  to  do  so 
upon  the  daughter's  marriage,  or  for  several  other  purposes,  but 
this  is  against  the  nature  of  the  power."  And  the  bill  was  dis- 
missed.(e) 

G.  In  Edgcworth  v.  Edgeworth,(/)  when  the  power  was  to 
charge  estates  "  with  reasonable  portions  or  fortunes  for  younger 
children,  and  for  their  maintenance  and  education,"  a  portion  was 
ajipointcd  to  a  child  under  twenty-one,  payable  on  the  death  of 
the  appointor,  with  interest;  and  it  was  held  not  to  be  vested  so 
as  to  be  transmissible,  as  the  infant  died  under  twenty-one.  Lord 
Chancellor  Hart  said,  that  to  prevent  the  intention  from  being 
defeated,  the  word  reasonable  must  he  considered  as  pervading 

(c)  Burrell  v.  Crutchley,  15  Ves.  jun.  544. 

(rf)  See  15  Ves.  552;  Brognive  v.  Winder,  2  Ves.  jun.  G34. 

(e)  Lord  Hiiichinbroke  v.  Seymour.  1  Bro.  C.  C.  3U5;  and  see  11  Ves.  jun.  470,  S. 
C,  cited  by  Lord  Eldon,  who  said,  the  daughter  was  consumptive.  See  1  Beat.  334; 
Cunyiighanie  v.  Thurlow,  1  Russ.  &  Myl.  436,  n. 

(/)  1  Beat.  328. 


2')G  SUGDEN  ON   POWERS. 


1 


every  part  of  the  }30wcrs  :  and  therefore  the  appointment,  to  be 
reasonable,  should  be  so  not  only  in  amount,  but  in  ^thc  time  and 
oecasion  on  which  the  child  would  want  the  portion. 

7.  We  have  already  seen,  that  if  the  power  be  only  to  give  un- 
conditionally, and  it  be  exceeded  by  dircctin*:;  the  ])ortions  to  be 
paid  at  twenty-one  or  marriage,  the  appointment  will  be  reformed, 

and  the  portions  be  made  payable  at  once.(g") 
[  *281  ]  *8.  In  Warr  v.  Warr,(//)  the  father  under  a  mar- 
riage settlement  had  power  to  raise  a  term  of  ninety- 
nine  years  in  lands  for  raising  given  portions  for  the  younger 
children,  to  be  paid  at  such  times  as  the  trustees  in  their  discretion 
should  appoint,  for  their  better  maintenance  and  preferment ; 
the  father  limited  the  sum  accordingly  and  died :  the  youngest 
son  died  at  seventeen,  and  it  was  held  that  his  portion  sunk  into 
the  inheritance. 

9.  In  Brown  v.  Nisbett,(i)  the  trust  of  a  term,  to  commence  in 
possession  after  the  demise  of  husband  and  wife,  was  to  raise  such 
sums,  not  exceeding  200/.,  for  the  settlor's  two  daughters  as  the 
husljand  and  wife  should  appoint,  and  in  failure  of  such  appoint- 
ment, as  the  survivor  should  appoint,  with  interest  from  such 
time  as  the  term  should  commence  in  possession,  and  not  before. 
By  a  joint  appointment,  the  200/.,  was  directed  to  be  equally  di- 
vided between  the  daughters,  to  be  paid  to  them  six  months  after 
the  death  of  the  sur^ivor  of  the  father  and  mother,  and  if  either 
of  them  died  before  payment  or  the  money  became  due,  then  the 
money  being  the  share  of  her  dying  to  be  for  the  benefit  of  her 
executors.  One  of  the  daughters  did  so  die.  Lord  Thurlow  held 
the  appointment  over  to  the  executor  void.  He  said  it  had  been 
insisted,  tluit  if  a  daughter  die  before  time  of  payment,  the  portion 
shall  not  Ije  raised,  but  sink  into  the  inheritance,  like  the  common 
case  of  portions  reserved  on  marriage,  payable  out  of  the  iuherit- 
ance  at  a  suljsequent  time,  and  the  daughter  dies  Ijcfore  that  time  ; 
and  he  saw  no  difference.  The  execution  was  part  of  the  power  ; 
suppose  then  it  had  been  inserted  in  the  original  deed,  it  would 
have  been  so. 

(s)  Dillon  V.  Dillon,  1  Ball.  &  Beat.  77;  but  qu.  whether  the  power  was  exceeded, 
(/i)  Prec.  Cha.  213.     See  Shelden  v.  Dormer,  2  Vern.  310;  Mayhew  v.  Middleditcb, 
1  Bro.  C.  C.  1C2. 
(t)  1  Cox,  13. 


INTEREST  MAY   BE   CHARGED.  257 

*10.  And  it  is  settled  now,  that  whether  the  portion 
charged  upon  land  be  given  with  or  without  interest  by  [  *282  ] 
deed  or  willj,  if  the  person  dies  before  the  age  at  which 
it  becomes  payable,  it  shall  sink  into  the  estate. (/(;) 

11.  We  have  seen  that  the  general  rule  is,  that  a  power  to 
charge  a  principal  sum  with  an  immediate  security,  includes  a 
right  to  charge  the  interest  besides.  (/) 

12.  And  although  portions  are  secured  upon  a  reversionary 
term,  to  commence  after  the  life  estates  in  the  husband  and  wife, 
and  in  default  of  appointment,  are  not  payable  until  after  the 
death  of  the  sur^^vor  of  the  husband  and  wife,  yet  the  father, 
under  a  power  to  appoint  the  portions  at  such  time,  or  times,  &c., 
as  he  shall  think  fit,  may,  although  his  wife  survive  him,  make  an 
immediate  appointment  to  the  children,  so  as  to  burden  the 
estate  with  interest  on  the  portions  from  his  death  ;(?;i)  but  of 
course  it  could  not  be  raised  against  the  life  estate. 

13.  In  Boycot  v.  Cotton, (?i)  in  a  strict  settlement,  the  tenant 
for  life  had  a  power  to  charge  any  part  of  the  lands,  not  exceed- 
ing 500/.  a  year,  for  portions  for  his  younger  children,  and  also 
a  power  of  jointuring.  He  exercised  both  powers,  and  charged 
the  part  of  the  estate  not  charged  with  the  jointure,  and  after  the 
decease  of  the  jointress  charged  the  other  part  also,  with  fixed 
portions,  (the  whole  of  the  lands  charged  not  amounting  to  above 
500^.  a  year,)  to  be  paid  to  sons  at  twenty-one,  and  to  daughters 
at  twenty-one  or  marriage,  and  to  be  paid  with  interest 

at  five  per  cent,  per  annum  from  his  death  *to  the  pay-  [  *283  ] 
ment  thereof,  and  Lord  Hardwicke  (who  relied  partly 
upon  the  fact  that  the  whole  value  of  the  estate  was  charged  with 
the  portions,)  held  that  the  donee  could  charge  the  estate,  although 
partly  in  reversion,  with  interest ;  for  where  there  is  a  power  to 
charge  an  estate  witli  a  gross  sum,  it  likewise  implies  a  power  to 
charge  it  with  interest,  because  it  may  be  necessary  that  interest 
should  be  given  by  way  of  maintenance. 

I'l.  And  where  interest  is  thus  charged,  it  ought  not  to  accumu- 

(A:)  Per  Lord  Hardwicke,  1  Atk.  555. 

(0  Lord  Kilmurry  V.  Geery,  2  Salk.  538.     See  2  P.  Wms.   671;  Orby  v.  Lord 
MohuD,  Gilb.  Rep.  45;  Roe  v.  Pogson,  2  Madd.  457. 
(m)  Conway  v.  Conway,  3  Bco.  C.  C.  207;  Wynter  v.  Bold,  1  Sim.  &  Stu.  507. 
(n)  1  Atk.  552;  and  see  Hall  v.  Carter,  2  Atk.  354.  358. 
22* 


258  SUGDEN  ON  POWERS.    • 

late,  but  to  be  paid  annually,  for  the  natural  constructiou  is,  that 
it  should  be  paid  annually,  and  becomes  due  every  day ;  and  it  is 
given  as  a  recompense  in  the  mean  time,  till  the  principal  is  due. 
And  it  will  be  considered  as  maintenance ;  for  giving  interest  is 
the  same  thing  as  giving  express  maintenance. (o) 

15.  So  although  the  ])rincipal  will  sink  into  the  inheritance, 
where  the  child  dies  before  the  portion  is  required,  yet  the  inter- 
est as  maintenance  will  be  payable  to  the  person  by  whom  it  has 
been  maintained. (;>) 

10.  The  donee  of  the  power,  having  power  to  charge  interest, 
may  fix  the  rate,  not  exceeding  the  legal  rate. (7)  If  no  rate  is 
fixed,  the  Court  will  give  four  per  cent.(7-) 

17.  In  Beale  v.  Beale,(s)  the  portions  appointed  under  a  power 
were  held  to  override  the  wife's  life  estate  limited  by  the  settle- 
ment.    The  portions  were  made  payable  by  the  instrument  execut- 
ing the  power,  at   twenty-one   or  marriage,  without 

[  *284  ]  more.  Lord  Harcourt  gave  them  *interest  on  theii- 
portions  at  three  per  cent,  till  twelve,  from  thence  four 
per  cent.;  but  upon  an  appeal  by  them.  Lord  Cowper  held,  that 
they  could  not  charge  the  jointress  with  interest  untU  the  portions 
were  payable,  )jut  from  that  time  they  were  to  carry  the  full 
legal  rate ;  but  he  said,  that  the  reason  of  postponing  the  pay- 
ment being  in  favour  of  the  jointress,  she  ought  to  maintain  them 
out  of  the  profits  of  her  jointure  lands.  But  this  appears  to  have 
been  rather  an  intimation  to  her  what  she  ought  to  do,  than  an 
order  upon  her  to  do  it. 

18.  And  unless  a  contrary  intention  appear,  the  introduction  of 
a  jointure  by  the  exercise  of  a  power,  will  postpone  the  payment 
of  the  portions  until  the  death  of  the  jointress  ;  and  if  the  princi- 
pal is  not  raisable  in  the  lifetime  of  the  jointress,  the  interest  can- 
not be  due  until  after  her  death,  for  interest  is  only  in  lieu  of 
non-payment  of  principal. (^) 

19.  And  in  these  cases  the  design  of  the  whole  settlement  must 

(0)  Per  Lord  Hardwicke,  in  S.  C,  1  Atk.  555. 

(J))  S.  C,  Warr  v.  Warr,  Prec.  Cha.  213. 

(g)  Lewis  V.  Freke,  2  Ves.  jun.  507;  Sitwell  v.  Barnard,  6  Ves.  jun.  520.  544. 

(r)  S.  C,  see  Codrington  v.  Foley,  G  Ves.  jun.  364. 

(s)  1  P.  Wms.  244;  Gilb.  Rep.  93;  vide  supra,  p.  43. 

(i)  Churchman  v.  Harvey,  Ambl.  341. 


POWER   AUTHORIZED   BY   ARTICLES.  259 

be  taken  into  consideration,  and  fruit  should  not  be  extorted  from 
a  barren  reversion,  except  where  the  owners  have  expressly  di- 
rected it.(w) 

20.  Where  articles  for  a  strict  settlement,  directed  that  the 
settlement  should  contain  a  clause  "  empowering  the  husband  to 
charge  1,000/.  for  the  younger  children  of  the  marriage,"  the 
Court  inclined  to  think  it  meant  a  charge  on  the  estate  as  a  pro- 
vision for  the  younger  children,  with  a  power  only  to  the  father 
to  ai)porti©n  the  shares. (a:) 

21.  If  in  default  of  appointment,  portions  are  by  articles  agreed 
to  be  settled  upon  the  cliildren  at  the  usual  ages,  as 
*tenants  inc  onunon  survivorsliip  between  the  children  [  *285  ] 
may  be  implied  in  favour  of  the  intention,  (y)  (I) 

22.  In  Iligginson  v.  Barncl)y,(c)  a  testator  by  his  will  direct- 
ed a  strict  settlement  to  Ijc  made  of  his  real  estate  on  his  nephews 
and  their  sons,  and  that  there  should  be  a  power  for  the  nephews 
to  jointure  to  a  certain  extent,  and  a  power  to  the  trustees  to  sell 
and  exchange,  and  also  a  power  to  the  beneficial  devisees  and 
trustees  to  lease  ;  "  and  that  there  should  also  be  contained  in 
such  settlement  all  other  clauses,  powers,  and  provisoes  as  are 
usually  inserted  in  settlements  or  deeds  of  that  kind ;"  it  was  held, 
that  the  will  did  not  authorize  a  power  to  appoint  portions  to 
younger  children,  because  the  effect  of  such  a  power  would  be  to 
diminish  the  estate,  which  was  expressly  limited  in  strict  settle- 
ment, and  because  there  was  no  certain  rule  as  to  the  quantum  of 
such  portions,  by  which  the  Court  could  be  guided.  The  words 
were  considered  as  referring  to  usual  and  necessary  powers  of 
management. 

(«)  Reynolds  v.  Meyrick,  1  Eden,  48;  Evelyn  v.  Evelyn,  2  P.  Wm8.  659. 
(x)  Savage  v.  Carroll,  1  Ball.  &  Beat.  205, 
{y)  Ilynes  v.  ReJington,  1  Rep.  t.  Plunkett,  33. 
(2)  2  Sim.  &.  Stu.  516. 

(I)   Qu.  whether  the  clause  to  be  supplied  was  not  the  common  clause,  that  no  one 
child,  in  default  of  appointment,  should  take  more  than  10,000/. 


•2G0 


SDGDEN   ON   POWERS. 


{    *288    ] 


^CHAPTER  XVL 


OP  POWERS  TO   JOINTURE. 


"2.  May  be  exercised  in  favour  of  succes-  i  22. 
sive  wives. 

3.  Unless  confined  by  intention.  23. 

4.  Repeated  executions  for  tlie  same  wife  25. 

good.  26. 

5.  Not  exliausted   by  a  declaration  that  27. 

remainder-man  shall  take  the  sur- 
plus. 28. 

7.  ^  Power    cannot    be  exceeded   as  to  29. 
>      quantity  or   value   of  land  to  be  31. 

■12.  )      charged. 

8.  Must  be  to  the  wife  herself.  32. 

9.  Chattel  interest  cannot  be  substituted 

for  freehold.  33. 

10.  Insufficiency  of  lands  made  good. 

11.  To  what  extent  wife  is  relieved.  34. 

12.  Husband  not  entitled  to  her  fortune  if 

jointure  invalid.  j  35. 

14.  May  be  agreed  to  be  exercised  by  re-  36 

mainder-man.  37. 

IP*  >  What  agreements  bind  the  power.         gg 

17.  Where  the  jointure  may  be  clear  of  39. 

taxes. 
21.  Where  articles  shall  be  construed  by 

the  power. 


Taxes  confined  to  time  when  power 
was  executed. 

Value  to  be  taken  at  the  same  period . 

)  Covenant  confined  to  power,  where 

3      tlicre  is  mistake. 

Where  the  power  extends  to  the  whole 
estate. 

Where  the  jointure  will  not  bar  dower. 

If  required,  ecjuitable  bar  sufficient. 

Whether  if  to  be  in  bar  of  dower,  it 
must  be  before  marriage. 

Alterations  by  statute  in  the  law  of 
dower. 

Appointment  upon  condition,  ap- 
pointor may  release  condition. 

Jointure  in  proportion  to  fortune,  how 
the  latter  should  be  paid. 

^  Or  settled. 

Fortune    received     after    husband's 

death  not  taken  into  account. 
Fraudulent  execution. 
Death-bed  execution. 


1.  It  has  been  already  shown  in  what  instances  equity  will  aid 
the  defective  execution  of  a  power  to  jointure5(a)  and  the  estates 
wliich  may  be  created  under  the  power  have  also  been  pointed 

out.  (6)  It  remains  only  to  recall  our  recollection  to 
[  *289  ]  these  points,  and  to  state  such  questions  as  *may  be  said 

peculiarly  to  relate  to  this  power,  although  certainly 
the  decisions  upon  them  equally  govern  any  other  power  of  a 
similar  nature. 

2.  As  the  object  of  a  power  to  jointure  is  to  enable  the  party 
to  whom  it  is  given  to  make  a  provision  for  the  wife  who   shall 


(a)  Vide  supra,  ch.  10. 


(b)  Vide  supra,  ch.  7. 


RELEASE  OP   POWER   TO   JOINTURE.  261 

survive  him,  cand  as  the  power,  however  frequently  exercise^,  can 
only  operate  as  a  charge  in  one  instance,  the  most  liljeral  con- 
struction should  be  put  upon  the  power  in  favour  of  a  repeated 
execution  of  it.  And  under  a  power,  if  a  man's  present  wife  die, 
and  he  marry  any  other  wife,  then  and  so  often  to  settle  « jointure 
for  such  wife  during  her  life,  he  may  settle  a  jointure  upon  any 
wife  that  he  may  afterwards  marry,  and  so  toties  quolies.{c^ 

3.  But  in  a  case  where  the  testator  directed,  that  if  his  son 
married  a  gentlewoman  with  a  good  fortune,  the  trustees  should 
settle  a  rent-charge  on  her  for  life,  suljjcct  thereto,  on  the  issue  of 
that  marriage  in  strict  settlement ;  but  if  the  son  died  without 
issue,  then  over  ;  and  the  question  was,  how  the  estate  was  to  be 
settled  ;  Lord  Hardwicke  determined,  that  an  estate-tail  should 
be  given  to  the  son  after  the  strict  settlement,  as  otherwise  the 
issue  of  any  future  marriage  could  not  take,  which  would  defeat 
the  testator's  intentfon.  He  said  it  was  objected  that  this  incon- 
venience would  not  happen  there  ;  for  that  the  trustees  might  exe- 
cute this  power  toties  quoties,  and  that  gentleiooman  was  nomen 
collectivmn.  But  that,  he  said,  would  not  be  according  to  the 
construction  of  powers,  which  can  be  executed  but  once,  unless 
the  words  import  otherwise,  as  it  evidently  was  not  there,  al- 
though it  miglit  be  executed  upon  a  second  wife,  if  not  done  be- 
fore. And  this  decree,  he  added,  answers  all  the  words  in  the 
will.(^)  This  case,  it  will  be  observed,  can  scarcely  be  ranked 
with  those  upon  the  common  power  of  jointuring,  for  the 
object  of  the  power  *was  to  make  a  strict  settlement  of  [  *290  ] 
the  estate,  and  not  merely  to  authorize  the  limitation  of 
a  jointure. 

4.  And  as  we  have  already  seen,  such  a  power  may  be  exe- 
cuted in  favour  of  the  same  wife  at  different  times,  provided  that 
the  party  do  not  in  all  the  executions  exceed  the  limits  of  the 
power,  (e) 

5.  And  although  a  jointure  less  than  the  power  authorizes  may 
appear  by  the  deed  to  be  a  full  execution  of  the  power,  or  to 

(c)  Hcrvcy  v.  Hervcy,  1  Atk.  5(51 ;  Barnard,  Cha.  Rep.  103;  and  see  2  Burr.  1144. 
1145. 

(rf)   Allanson  v.  Clitherow,  1  Ves.  24. 

(e)  Hcrvcy  v.  Hervey,  1  Atk.  5G1,  et  ubi  sup.;  Zouch  v.  Woolston,  2  Burr.  1136; 
1  Blackst.  '.^81 ;  and  see  Doe  v.  Milbornc,  2  Ter.:s  Ren.  721. 


262  SUGDEN  ON  POWERS. 

amount  to  a  release  of  it,  yet,  as  we  have  also  seen,  the  intention 
must  appear  clearly  ;  therefore  a  (h^claration  in  a  deed  ]>artially 
executing  a  power  of  Jointuring,  that  it  is  in  lieu  of  dower  and 
thirds,  and  that  the  remainder-man  shall  have  the  surplus,  will  not 
operate  as  a  release  of  the  power,  for  they  are  only  words  jnit  in 
by  conveyancers  as  of  course. ( /")  The  practice  in  conveyancing 
is  said  to  be,  to  release  tiic  power  and  all  further  claim  to  it 
whenever  the  power  is  completely  executed,  and  there  is  no  inten- 
tion to  go  any  furtlier  in  the  exercise  of  it.(ji^) 

6.  In  Zouch  V.  Woolston(/i)  the  words  were  very  large : 
"  from  time  to  time  during  his  life,  by  deed  or  deeds,  writing  or 
writings,  to  limit  all  or  any  part  of  the  estate  to  any  woman  or 
women  that  sliall  be  his  wife  or  wives,  for  and  during  their  life 
or  lives  ;  "  and  yet  it  was  argued  that  this  manner  of  expression 
was  meant  to  take  in  the  case  of  marrying  different  wives  one 
after  another  ;  l)ut  the  Court  said  it  had  no  meaning  other  than 
by  applying  these  words  to  eacli  respective  wife  that  he  might 
marry,  and  construing  them  to  empower  the  husband  to  make 
difierent  settlements  upon  the  same  wife. 

7.  In  discussing  the  general  subject,  we  have  elsewhere  con- 

sidered what  interests  may  be  appointed  and  where 
[  "*291  ]  ""there  may  be  a  limitation  to  trustees  for  the  object  of 

the  power. (i)  As  before  stated,  a  power  to  grant  a 
jointure  rent-charge  ou  any  part  of  the  estate  of  a  particular 
value,  will  not,  even  in  equity,  authorize  an  appointment  of  a 
jointure  rent-charge  on  the  entire  estate  ;  nor  will  a  power  to 
settle  part  of  the  land  of  a  given  value,  authorize  an  appoint- 
ment of  a  rent-charge  of  the  same  value  on  the  whole  estate  ;  but 
equity  in  lavour  of  the  wife  would  relieve  against  the  defective 
appointment. 

8.  In  Hervey  v.  Hervey,(/(;)  the  power  was  to  make  a  jointure 
of  such  of  the  lands  as  he  thought  })roper,  not  exceeding  600/.  a 
year.  In  the  execution  of  the  power,  the  devisee  conveyed  all  the 
lands  which  wore  subject  to  the  power  to  trustees,  not  to  the  wife, 

(/)  Vide  supra,  vol.  1,  p.  89;  Hervey  v.  Hervey,  ubi  sup. 

(g)  See  2  Burr.  111'.),  per  Wilinot,  J. 

(/i)  2  Burr.  113G. 

(i)  Supra,  vol.  1,  p.  486.  489. 

(A:)  lAtk.  561. 


AGREEMENT  TO   SECURE   JOINTURE.  263 

for  raising  the  jointure.  Lord  Hardwicke  said  that  the  words 
jointure  or  provision  were  synonymous  terms,  but  this  was  a  con- 
veyance to  trustees,  which  is,  in  point  of  law,  no  jointure,  for  to 
make  it  so,  the  provision  ought  to  be  to  the  icife  herself.  No 
conveyance  could  be  pursuant  to  the  ])Owcr  but  what  was  to  the 
wife  herself,  and  the  point  was  ruled  the  same  way  in  the  case  of 
Churchman  v.  Harvey. (^) 

9.  We  have  before  seen,  that  under  a  power  to  jointure  by 
limiting  the  estate  to  the  wife  for  her  life,  a  term  of  years  de- 
pendent on  her  life  cannot  be  created  at  law,  because  the  estates 
are  different,  one  being  a  freehold  and  the  other  a  chattel,  and 
the  freehold  in  her  being  a  qualification  to  any  future  husband  to 
be  a  member  of  Parliament,  kill  game,  <fec.  (under  the  old  law)  ; 
but  such  an  appointment  would  be  supported  in  equity. (m) 

10.  So  we  have  seen,  that  where  the  power  is  actually  executed, 
but  lands  to  the  value  agreed  upon  are  not  settled,  the  wife  will 
be  relieved  against  the  remainder-man. (w) 

*11.  Where  in  pursuance  of  articles  a  husljand  [  *292  ] 
settled  a  jointure  upon  his  wife,  and  afterwards  volun- 
tarily appointed  to  her  under  a  power  a  jointure  of  250/.  a  year 
as  an  additional  jointure,  but  which  was  declared  to  be  in  recom- 
pense of  all  deficiencies  either  in  title  or  value  of  any  estate  on 
her  before  settled  or  agreed  to  be  settled  in  consideration  of  their 
marriage  ;  and  the  first  proved  defective  both  in  title  and  value, 
for  he  was  only  tenant  in  tail  of  the  estate,  and  died  without 
issue  and  without  suffering  a  recovery  ;  the  settlement  was  made 
good  against  the  remainder-man  to  the  extent  of  her  articles 
and  of  her  right  of  dower,(I)  and  the  250/.   per  annum  was  held 

(/)  See  Ambl.  341. 

(»i)  Sapra,  vol.  1 ,  p.  491. 

(n)  Supra,  ch.  10,  s.  2. 

(I)  The  case  is  complicated.  Viner  states  it  inaccurately.  The  articles  were  gene- 
ral, but  to  be  of  lands  in  a  county  in  which  some  of  the  lands  were  situated,  of  which 
the  husband  was  tenant  in  tail,  without  any  power;  and  the  settlement  itself  was  of 
lands  in  the  three  counties  of  which  he  was  so  tenant  in  tail.  The  power  was  not  at- 
tempted to  be  execute<l  until  the  appointment  of  170o;  and  this  in  the  decree,  as 
stated  in  4  Bro.  P.  C.  is  probably  by  mistake  called  her  original  jointure  :  it  was  her 
only  jointure.  The  original  settlement  was  of  course  void  against  the  remainder-man, 
*nd  90  were  the  articles;  but  as  she  was  let  in  to  the  extent  of  the  articles  on  any  es- 
tate of  which  the  husband  was  seised  in  fee  or  fee-tail,  it  must,  it  should  seem,  have 
been  on  the  ground,  that  her  dower  in  equity  was  not  extinguished,  although  she  had 


264  BUGDEN   ON   POWERS. 

not  to  lie  a  part  satisfaction,  for  when  he  settled  that  he  thought 
that  he  had  made  a  prior  good  settlement  of  the  500/.  per  annum 
on  her,  so  that  he  intended  her  to  have  both.(o)  The  declaration 
therefore  in  the  ap[)ointment  was  not  held  to  restrain  her  right 
to  what  she  had  contracted  for,  and  which  her  husband's  estate 
enabled  the  law  to  make  good. 

12.  And  we  may  again  observe,  that  if  the  husband  is  to  become 
entitled  to  the  wife's  fortune  in  consideration  of  the  jointure, 
and  she  cannot  obtain  the  jointure,  she  may  retain  her  own  pro- 
perty. (/;) 
[  *293  ]  *13.  If  a  power  authorize  a  portion  of  the  estate  of  a 
given  value  to  be  settled,  and  the  husband  appoint  the 
whole  estate,  being  of  greater  value,  to  trustees  for  the  benefit  of 
his  wife,  by  way  of  jointure,  without  mentioning  any  rent-charge 
at  all,  and  then  adds  this  clause,  according  to  the  power  to  him 
reserved,  the  Court  in  such  a  case  would  hold  the  power  to  have 
been  well  executed  for  a  part  of  the  estate  of  the  annual  value 
allowed  to  be  charged. (^) 

14.  As  we  have  already  seen,  powers  of  jointuring,  to  be  exer- 
cised when  in  possession,  are  frequently  agreed  to  be  executed  by 
remainder-men  whose  right  of  possession  has  not  accrued,  and 
equity  will  make  good  the  appointment  if  the  party  afterwards 
do  actually  come  into  possession. (r)  Whether  powers  may  be 
accelerated  by  accepting  a  surrender  of  a  previous  life-estate,  so 
as  to  acquire  the  possession,  has  already  been  considered. (s) 

15.  And  where  the  party  has  a  power  to  jointure,  an  agree- 
ment to  secure  a  given  jointure,  according  to  his  power  or  other- 
wise, will  be  deemed  a  primary  charge  on  the  estates  within  the 

power.  (0 

1().  This  was  carried  very  far  in  Jackson  v.  Jackson,(«)  where 

joined  in  levying  a  fine.  Tlie  prayer  of  the  bill  was  to  have  her  jointure  confirmed, 
or  her  dower  assigned,  by  way  of  recompense,  but  of  all  lands  whereof  her  husband 
was  sciscil  in  fee  or  in  tail,  according  to  the  proviso  in  the  27  H.  8,  c.  10. 

(0)  Lady  Hooke  v.  Grove,  5  Vin.  Abr.  293,  pi.  40;  4  Bro.  P.  C.  by  Toml.  593. 

(j»)  Supra,  ch.  10,  s.  2. 

(q)  Barnard.  C.  C.  116,  per  Lord  Hardwicke. 

(r)  Jackson  v.  Jackson,  4  Bro.  C.  C.  4G2;  supra,  ch.  10,  s.  2. 

(s)  Supra,  vol.  1,  p.  839. 

(<)  Coventry  v.  Coventry,  2  P.  Wms.  222;  supra,  ch.  10,  s.  2,  see  the  cases  stated. 

(m)  Ubi  sup. 


AGREEMENT   TO   SECURE   JOINTURE.  265 

under  a  resettlement  a  son,  tenant  for  life  in  remainder,  after  his 
father's  life  interest,  of  an  estate  in  the  county  of  York,  with  a 
power  of  jointuring  when  in  actual  possession,  executed  a  few 
months  after  the  first  deed  a  marriage  settlement,  in  which  his 
father  joined,  and  the  father  and  son  covenanted  within  twelve 
months  to  assure  to  the  intended  wife  a  sufficient  estate  for  her 
life,  to  take  effect  in  possession  after  her  husband's  death,  in  free- 
hold lands  in  the  county  of  York  of  the  yearly  value  of  100/.,  or 
otherwise  that  the  son  would,  within  that  time,  assure 
*unto  her  an  annuity  of  100/.,  to  be  issuing  out  of  free-  [  *294  ] 
hold  lands  of  a  competent  value  in  the  county.  The 
son  lived  to  come  into  possession  and  died  without  having  executed 
the  power,  leaving  a  small  real  estate  and  a  very  small  personal 
estate,  not  sufficient  to  pay  his  debts.  Lord  Alvanley  held  that 
the  settled  lands  were  bound  by  the  covenant.  He  said  no  lands 
were  pointed  out ;  it  is  a  mere  covenant ;  and  it  is  said  though  he 
entered  into  the  covenant  he  had  something  further  in  view.  The 
father  joins  in  the  covenant  that  the  son  shall  make  the  settlement. 
It  was  argued  that  there  was  nothing  to  show  it  was  to  be  out  of 
this  estate :  he  thought  there  was  a  great  deal,  for  he  had  no 
other  estate  out  of  ivhich  he  could  do  it. — The  son  living  to  be  in 
possession  would  have  been  decreed  to  settle ;  so  that  whether  he 
had  the  poiver  in  contemplation  at  the  time  of  etitering-  into  the 
articles  or  not.,  having  a  power  to  settle,  and  no  other  estate.,  any 
person  entitled  might  have  called  upon  him  to  settle. — He  did  not 
think  the  cases  which  say  that  tlic  Court  will  not  supply  the  non- 
execution  of  powers  were  affected  by  this :  there  it  is  a  duty  of 
imj)erfcct  obligation ;  here  he  was  bound  to  do  it  in  the  way  that 
he  could ;  and  i\\{i  Court  would  construe  it  to  be  intended  for 
f  >arties  claiming  bona  fide.,  and  for  valuable  consideration. 

17.  A  general  [lOwer  to  jointure  to  a  particular  amount,  without 
expressing  that  it  shall  be  clear  of  taxes,  will  only  enable  an 
appointment  of  the  jointure,  sulyect  to  natural  outgoings,  as  paro. 
chial  payments  and  repairs,  kcix) 

18.  Where  the  jointure  is  to  be  of  the  clear(jf)  yearly  value,  it 
means  clear  of  incumltrances  and  all  other  charges,  which  by  the 

(x)  Hervcy  v.  Ilervey,  1  Atk.  561;  Barnard.  Chancery  Rep.  103;  Lady  London, 
dcrry  v.  Wayne,  Ambl.  4'J4;  see  Trevor  v.  Trevor,  13  Sim.  136.  152. 

(y)  Sec  Da  Coata  v.  Villareal,  1  Bro.  C.  C.  4,  n.;  Hodgwortli  v.  Crawley,  2  Atk.  376. 

YoL.  U.  23 


2G6  BUGDEN   ON  POWERS. 

course  and  usage  of  the  country  in  whicli  the  lauds  lie,  ought  to 
be  borne  by  the  tenant,  but  sul)ject  to  the  land-tax  and 
[  *295  ]  all  other  outgoiii.us,  which,  according  to  *such  course  of 
the  country,  ouglit  to  be  borne  by  tin.'  huullord.  In  the 
case  in  Avhicli  this  was  decided,  Lord  Ilardwicke  said,  tliat  the 
word  "  clear"  should  ])e  construed  in  the  power  as  it  would  in  an 
agreement  between  l)uyer  and  seller,  that  is,  clear  of  all  outgo- 
ings, incumbrances,  and  extraordinary  charges,  not  according  to 
the  custom  of  the  country,  as  tithes,  poor-rates,  church-rates,  &c. 
which  are  natural  charges  on  the  tenant.  If,  he  added,  in  the 
country  where  these  estates  lie,  it  has  been  the  custom  for  the 
landlord  to  pay  those  rates,  he  should  have  thought  this  jointure 
ought  to  have  been  subject  to  them,  for  they  would  in  such  case 
be  only  ordinary  charges.  But  the  contrary  was  proved,  that  it 
was  not  the  custom  of  the  country,  (s)  And  where  the  custom  is 
for  the  tenant  to  pay,  it  is  not  material  that  in  respect  of  the 
particular  estate  the  landlord  has  agreed  to  pay  them,  so  as  to 
increase  the  nominal  value  of  the  lands  by  increasing  the  rent. (a) 

19.  So  under  the  words  clear  of  charge  or  reprize  the  jointure 
could  not  be  limited  clear  of  land-tax. (6) 

20.  But  where  the  power  was  to  jointure  to  a  stated  amount, 
impositions,  imposed,  or  to  be  imposed, parUamentary  or  otherwise, 
without  any  deduction  or  abatement,  for  any  taxes,  charges,  or 
but  subject  to  leases  in  being  at  the  time  of  such  execution  made, 
Lord  Hardwicke  decreed  that  the  power  authorized  a  jointure  to 
be  appointed,  "  free  from  all  incumbrances,  rent-charges,  rents- 
seek,  fee-farms,  quit-rents,  annuities,  stipends  to  ministers,  pensions 
and  procurations  ])ayablc  thereout,  and  also  free  from  all  parlia- 
mentary taxes  or  impositions  of  such  nature  and  kind  as  were  in 
being  at  the  time  of  executing  the  power,  and  particularly  from 

the  land-tax  then  in  being  ;"(6')  and  the  words //-ee 
r  '296  ]  *from  tuxes,  particularly  embrace  the  land-tax,  as  being 
the  only  tax  to  which  land  is  absolutely  liable. (c?) 

(z)  Earl  of  Tyrconnel  v.  Duke  of  Ancaster,  Ambl.  237;  2  Ves.  500. 

(a)  S.  C. 

(J))  Ambl.  240;  2  Vcs.  540;  as  to  the  extent  of  the  word  reprize,  see  Hall  v.  Hall, 
2  Dick.  710;  and  see  2  Atk.  545. 

(c)  Marchioness  of  Blandford  v.  Duchess  of  Marlborough,  2  Atk.  542. 

{(i)  Chanipernon  v.  Champernon,  Dougl.  G26,  cited;  and  see  on  the  general  ques- 
tion, Brewster  \.  Kitchen,  1  Lord  Raym.  817;  Bradbury  v.  Wright,  Dougl.  624;  and 
see  Da  Costa  v.  Villareal,  1  Bro.  C.  C.  4,  n. 


WHERE  VALUE   OF   JOINTURE   LANDS    FIXED.  267 

21.  And  where  a  man  having  power  to  jointure  clear  of  all 
taxes,  by  articles  referring  to  his  power,  agrees  to  grant  a  joint- 
ure free  from  reprizes,  or  the  like,  although  the  words  may  not 
be  co-extensive  with  those  in  the  power,  yet  as  the  intention  is 
evident,  it  shall  be  considered  an  agreement  to  grant  such  a  joint- 
ure as  is  authorized  by  tlic  power,  (e) 

22.  But  Lord  Hardwieke  very  properly  determined,  that  where 
land  of  a  given  value  is  to  be  settled,  the  taxes  from  which  the 
jointure  is  to  be  free,  are  such  only  as  were  in  being  at  the  time 
of  executing-  the  power,  not  and  the  same  as  to  the  quantiuii  of 
any  existing  tax,  so  that  the  land  would  be  free  in  the  hands  of 
the  jointress  from  any  future  increase  of  the  tax,(/)  for  other- 
wisejthis  mischief  would  follow,  that  whenever  any  tax  varied, 
that  would  be  a  defect  in  the  value  of  the  jointure,  and  the 
jointress  would  come  into  a  court  of  equity  to  make  the  defect 
good  against  the  remainder-man. 

23.  And  where  lands  of  a  given  value  are  to  be  settled,  the 
value  is  in  other  respects  to  be  taken  as  it  stood  at  the  time  of  the 
execution  of  the  power.  This  Lord  Hardwieke  repeatedly  de- 
termined. (^'•)  If  by  any  accident  after  the  execution  of  the 
power  there  should  be  an  excess,  it  will  be  for  the  benefit  of  the 
jointress.  By  parity  of  reason,  if  there  should  be  any 
deficiency  by  inundation,  or  casualties,  the  *jointrcss  [  *297  ] 
must    acquiesce   under   it ;  to   construe   it   otherwise 

would  make  these  powers  desultory. (/i)  But  in  a  subsequent 
case  before  Lord  Northington,  where  the  point  was  not  much  de- 
bated, he  held  that  the  value  cannot  be  fixed  witli  justice  but  at 
the  time  of  the  hvsbancVs  death.  The  wife  cannot  know  the 
value  but  by  inspection  of  leases,  or  by  information,  if  the  estates 
are  in  liand.  The  rent  taken  at  a  particular  time,  and  under  a 
particular  letting,  ought  not  to   bind   the  wife.     The  rent  of  an 

.  (c)  Miirchioness  of  Blandford  v.  Duchess  of  Marlborough,  2  Atk.  542;  Lady  Lon- 
donderry V.  Wayne,  Ainbl.  424,  et  infra. 

{/)  Marchioness  of  Blandford  v.  Duchess  of  Marlborough,  2  Atk.  542;  and  see 
Ambl.  2.30;  2  Ves.  502;  13  Sim.  13G. 

(^)  Marchioness  of  Blandford  v.  Duchess  of  Marlborough,  2  Atk.  542;  Earl  of 
Tyrconnel  v.  Duke  of  Ancaster,  2  Ves.  500;  Ambl.  237;  and  see  Vernon  v.  Vernon, 
Ambl.  1. 

(/»)  See  2  Atk.  544;  and  see  Speake  v.  Speake,  1  Vern.  217;  Pinnell  v.  Hallet, 
Ambl.  106. 


268  SUGDEN   ON   POWERS. 

estate  is  very  uncertain  ;  it  often  varies ;  the  landlord  is  often 
obliged  to  give  lioons.  Wlicrc  he  lias  been  at  an  expense  of  im- 
proving, it  is  eommon  for  the  tenant,  instead  of  }>aying  a  sura  of 
money  for  the  improvements,  to  pay  an  increase  of  rent ;  and  he 
accordingly  decreed  the  value  of  the  lands  to  be  taken  as  at  the 
time  of  the  husband's  death. (i) 

24.  The  case  before  Lord  Northington  is,  in  some  respects,  dis- 
tinguishal)le  from  those  before  Lord  Hardwiclce,  but  their  opinions 
are  at  variance";  for  according  to  the  report,  Lord  Northington 
laid  down  the  rule  generally. (I)  The  value  must  be  taken  as  it 
stood  at  some  given  time,  and  Lord  Hardwicke's  is  decidedly  the 
better  rule.  For  by  that  rule,  if  the  power  be  duly  executed, 
with  reference  to  the  time  of  its  execution,  no  question  can  arise 
upon  any  subsequent  rise  or  fall  in  the  value  of  the  lands : 
whereas,  if  Lord  Xorthington's  opinion  were  to  be  followed, 
nearly  every  case  of  this  nature  would  occasion  a  suit  in  equity  ; 
because  in  most  cases  the  lands  would  rise  or  fall  in  value  be- 
tween the  time  of  the  execution  of  the  power  and  the  husband's 
death. 

25.  Where  a  man  covenants  that  a  jointure  is  of  a 
[  *298  ]  given  value,  *the  wife  has  of  course  a  remedy  to  have 
the  defect  supplied  out  of  her  husband's  assets  ;(k)  but 
where  it  is  clear  that  the  parties  merely  intended  that  he  should 
execute  his  power,  although  he  agrees  to  do  something  beyond  it, 
the  Court  will  consider  the  excess  as  a  mistake,  and  will  not  give 
the  wife  a  compensation  in  respect  of  it  out  of  her  husband's 
assets.  This  was  settled  in  the  case  of  Londonderry  v. 
Wayne, (/)  where  a  man  having  a  power  to  jointure  to  the  extent 
of  400/.  generally,  agreed  to  convey  part  of  the  estates  com- 
prised in  the  power,  of  the  yearly  value  of  400/.,  n/ear  of  taxes 
and  reprizes,  to  his  wife,  and  afterwards  executed  his  power 
without  making  the  jointure  clear  of  taxes.  And  Lord  North- 
ington decreed,  that  the  insertion  of  the  words  "  clear  of  taxes 

(i)  Lady  Loudonderry  v.  Wayne,  Ambl.  424.     See  and  consider  the  case. 

(/c)  Probert  v.  Morgan,  1  Atk.  440. 

(/)  Ambl.  424;  and  see  the  converse  of  the  case,  supra,  p.  297. 

(I)  In  2  Eden,  173,  the  words  arc,  ••  I  think  where  there  is  a  settlement  of  this 
nature,"  so  that  Lord  N.  perhaps  meant  to  confine  the  rule  to  the  peculiar  case  before 
bim. 


WHERE   VALUE   OF   JOINTURE   LANDS   FIXED.  269 

and  reprizes,"  was  a  mistake.  The  persons  concerned  imagined 
that  the  words  of  the  power  were  to  be  so  understood  ;  and  he 
was  of  opinion  that  it  was  not  the  husband's  intention  to  covenant 
beyond  his  power  of  jointuring.  Another  ground  relied  upon  was 
that  the  settlement  rectified  the  mistake  :  and  that  the  wife,  who 
had  reserved  a  great  part  of  her  own  fortune  to  her  separate  use, 
and  was  assisted  by  her  own  solicitor,  a  man  of  eminence,  was  to 
be  considered  a  feme  sole,  and  capable  of  contracting,  although 
she  was  under  coverture. 

26.  But  of  course  this  rule  can  only  prevail  where  it  is  evident 
that  a  mistake  was  made  by  all  parties^  therefore  if  the  power  was 
not  known  to  the  wife,  and  not  referred  to  in  the  articles,  it  is 
clear  that  the  wife  might  come  against  her  husband's  assets  for 
any  deficiency,  although  he  should  execute  his  power  to  the  fullest 
extent ;  and  it  would  be  no  plea  that  he  himself  mistook  the  con- 
struction or  extent  of  his  power. 

27.  Where  an  estate  was  devised  to  the  testator's  son  for  life, 
and  that  he  should  be  capable,  with  the  consent  of  the 
'trustees,  to  settle  a  jointure  on  the  woman  they  agree  [  *299  \ 
to,  in  writing,  he  should  marry,  it  was  considered  that, 
although  the  trustees  might  regulate  the  quantum,  yet  the  power 
extended  over  the  whole  of  the  estate. (m) 

28.  Where  the  power  simply  is  to  appoint  a  provision  for,  or 
in  the  name  or  in  lieu  of  jointure,  (which  does  not  bar  dower,) 
the  provision  will  be  no  bar  of  dower,  unless  declared  to  be  so  by 
the  donee  of  the  power. (w)  It  appears  to  have  been  considered 
that  the  donee  may  properly  insert  such  a  pro  vision, (o)  and  that 
opinion  may,  it  is  apprehended,  from  the  nature  of  the  power,  be 
supported  on  solid  grounds.  This  question  is  now  of  little  impor- 
tance. 

29.  In  Newport  v.  Savage, (p)  (l)etter  known  by  the  name  of 
Rattle  and  Popham,)  the  power  was  to  appoint  the  estate  to  the 
wife  for  her  life,  in  lieu  of  jointure,  and  the  appointment  (which 
was  bad  at  law  as  being  a  chattel  interest  in  trustees)  was  made  in 

(m)  Mansell  v.  Mansell,  Wilmot's  notes,  36.  i\s  to  the  consent  of  tho  trustees 
see  vol.  1,  p.  326. 

(n)  See  2  Burr.  1144. 
(o)  See  1  Atk.  667. 
(j>)  App.  No.  17. 

23* 


270  SUGDEN   ON   POWERS. 

bar  of  dower.  Lord  Talbot  j^aid,  that  it  was  objected  that  this 
was  such  an  estate  that  this  was  no  bar  of  dower,  but  the  donee, 
he  said,  was  left  at  large  to  make  a  provision  for  his  wife.  Be- 
sides, in  the  settlement  made  on  her,  it  was  generally  said  to  be 
in  bar  of  dower,  and  therefore,  as  it  would  be  an  equitable  exe- 
cution of  the  power,  so  it  would  be  an  equitable  bar  of  dower. 

30.  It  seems  clear  that  Lord  Talbot's  opinion  was,  that  the 
jointure  need  not  have  been  made  in  bar  of  dower  ;  and  it  estab- 
lishes the  rule,  that  if  it  l^e  necessary,  an  equital)le  bar  of  dower 
will  be  sufficient. 

31.  In  Aleyn  v.  Bclchier((/)  the  power  was  to  a  tenant  for  life 
under  a  will  to  make  a  jointure  on  any  woman  he  should  then  after 
marry,  for  her  life,  in  bar  of  dower.     After  marriage  a  jointure 

was  made  in  fraud  of  the  power  and  it  was  not  dc- 
[  *300  ]  clarcd  to  be  in  bar  of  dower,  but  simply  for  her  *jointure. 

The  Lord  Keeper  said,  that  he  was  inclined  to  think  the 
power  was  not  well  executed  in  point  of  law.  It  ought  to  have 
been  before  marriage.  The  power  was  given  under  restrictions. 
It  must  be  a  jointure  in  bar  of  dower,  which  can  only  be  before 
marriage  ;  dower  is  not  barable  by  a  jointure  after  marriage. 
But  he  built  his  opinion  in  the  case  upon  another  point. 

32.  There  appears  to  be  no  foundation  for  this  doubt.  The 
power  does  not  require  that  the  jointure  shall  operate  as  an 
absolute  bar  of  dower,  but  that  it  sliall  be  made  in  bar  of  dower. 
If  it  is  made  in  bar  of  dower,  the  power  is  complied  with,  and  it 
must,  if  accepted,  be  taken  as  a  bar  of  dower.  If  it  should  be 
rejected  because  made  after  marriage,  the  execution  would  alto- 
gether fail.  There  seems  reason  to  contend,  that  if  under  such  a 
power  nothing  is  said  about  dower,  but  the  appointment  is  simply 
of  the  estate  as  a  jointure,  it  would,  with  reference  to  the  terms 
of  the  power,  be  a  bar  of  dower,  and  the  power  therefore  would 
be  well  executed. 

33.  But  the  importance  of  a  jointure  being  in  Ijar  of  dower  is 
much  lessened,  now  that  by  statute  law  :(r) 

1st.  A  widow  is  not  entitled  to  dower  out  of  any  land  which  has 
been  absolutely  disposed  of  l^y  her  husband  in  his  lifetime,  or 
by  his  will 

(<7)  App.  No.  27.     1  Eden,  132. 
(r)  3  &  4  W.  4,  c.  105. 


PRESENT   LAW   OP   DOWER.  271 

2d.  That  all  partial  estates  and  interests,  and  all  charges  created 
by  any  disposition  or  will  of  a  husband,  and  all  debts,  incumbran- 
ces, contracts  and  engagements  to  which  his  land  shall  be  subject 
or  liable,  shall  be  valid  and  effectual  as  against  the  right  of  his 
widow  to  dower. 

3d.  That  a  widow  shall  not  be  entitled  to  dower  out  of  any 
land  of  her  husband,  when  in  the  deed  by  which  such  land  shall 
be  conveyed,  or  by  any  deed  executed  by  him,  it  shall  be  declared 
that  his  widow  shall  not  be  entitled  to  dower  out  of  such  land. 

4th.  That  although  he  die  intestate,  wholly  or  partial- 
ly, *hc  may  defeat  her  right  by  a  declaration  of  his  [  *301  ] 
intention,  by  a  will  duly  executed  for  the  devise  of  real 
estate. 

otli.  Or  he  may,  in  like  manner,  subject  her  dower  to  any  con- 
ditions, restrictions  or  directions. 

34.  If  a  jointure  be  appointed  subject  to  a  condition  not  required 
by  the  power,  e.  g-.  that  the  woman  shall  release  her  dower,  the 
husband  may  release  her  from  the  performance  of  the  condition 
by  any  subsequent  instrument,  (s) 

35.  It  is  customary  to  give  a  man  a  power  to  jointure  his  wife 
in  proportion  to  the  fortune  she  brings  ;  for  example,  100/.  per 
annum  for  every  1,000/. ;  and  as  the  object  of  such  power  is  that 
the  estate  may  not  be  incumbered  in  favour  of  a  woman  who 
brings  no  fortune  into  the  /amily,  any  underhand  execution  of  it 
will  be  set  aside  ;  a  nominal  portion  is  not  sufficient ;  as,  if  the 
husband  or  his  friends  advance  money  to  make  up  the  sum,  it  is 
afterwards  repaid,(^)  so  although  she  has  a  portion,  yet  if  it  is 
settled  to  her  separate  use,  it  will  not  enable  the  husband  to 
exercise  his  power,(w)  so  perhaps  if  it  were  settled  on  the  hus- 
band for  life  only,  remainder  to  the  wife  absolutely. 

3G.  But  it  is  not  necessary  that  the  portion  should  be  paid, 
and  absolutely  expended  by  the  husband,  because  that  would  put 
it  out  of  his  power  to  make  a  reasonable  settlement  of  it  on 
his  family,  and  yet  enable  him  to  waste  and  squander  it  away ; 
therefore,  where  the  portion  is  settled  in  a  proper  and  rea- 
sonable manner  for  the  benefit  of  the  family,  in  the  fair  way  of 

(«)  Zouch  V.  Woolston,  2  Burr.  Jloo. 

(0  Vide  supra,  ch.  10. 

(u)   Lord  TjTconnel  v.  Duke  of  Ancester,  Ambl.  237;  2  Ves.  6G0. 


272  SUGDEN  ON   POWERS. 

oontractiuf!^,  that  is  not  within  the  reason  of  the  cases  on  fraud 
and  ooUusion.  Upon  these  principles  Lord  Ilardwicke  determin- 
ed, tluit  a  settlement  of  part  of  the  wife's  portion  on  the  husband 
for  life,  remainder  on  the  younger  children  of  the  marraige,  and 
in  case  there  should  be  no  such  child,  on  the  survivor  of  the  hus- 
band and  wife,  was  not  a  frand  on  the  power,  although  the  wife 

survived  him,  and  there  was  no  younger  child,  so  that 
[  *302  ]  she  herself  *evcutually  became  entitled  to  her  portion 

as  well  as  her  jointure. (x) 

37.  In  a  late  case,  where  an  estate  was  devised  to  several  persons 
and  their  issue  male,  in  strict  settlement,  with  a  power  to  the 
tenants  for  life  to  jointure  according  to  the  amount  of  the  wife's 
portion  upon  condition  that  not  less  than  two-thirds  of  the  portion 
should  be  settled,  "  one-third  upon  the  eldest  son  of  the  marriage, 
and  one  other  third  upon  the  younger  children"  Lord  Eldon  deter- 
mined that  a  life  interest  in  two-thirds  might  be  reserved  to  the  hus- 
band ;  and  that  the  interest  of  an  eldest  son  might  be  divested 
in  case  of  his  death  without  issue  male  under  twenty-one.  (y) (I) 

38.  Under  a  power  of  this  nature,  the  tenant  for  life  cannot 
bind  the  estate  in  the  hands  of  the*  remainder-man  in  respect  of 
any  part  of  his  wife's  fortune,  not  received  or  ascertained  till 
after  his  deaths  for  the  estate  might  otherwise  be  burthened  with 
jointures,  to  take  efifect  upon  remote  contingencies,  or  possibilities 
of  further  portions  coming  in.  But  if  it  be  agreed,  that  in  consider- 
ation of  such  future  jointures  the  wife's  future  i)roperty  shall  belong 
to  the  husband,  as  she  cannot  have  the  recompense  in  considera- 
tion whereof  it  was  agreed  she  should  part  with  it,  she  will  be 
entitled  to  retain  such  property  herself.  (2^) 

39.  We  have  elsewhere  considered  what  will  be  deemed  a 

(x)  Lord  Tyrconnel  v.  Duke  of  Ancaster,  ubi  sup. 

(y)  Burrell  v.  Crutchley,  15  Ves.  juu.  544;  Fearne's  Posth.  350. 

(z)  Holt  V.  Holt,  2  P.  Wms.  648;  vide  supra,  p.  131. 

(I)  In  Brograve  v.  Winder,  2  Ves.  jun.  G34,  a  direction  in  a  will  that  the  daughter's 
legacy  should  before  marriage  be  settled  on  her  for  life,  and  after  her  death  "  upon 
her  issue,  or  in  default  of  issue,  upon  her  right  heirs,"  was  held  to  warrant  a  settle>- 
ment  upon  the  husband  and  wife  successively  for  life;  then  for  the  children  as  they 
should  appoint :  in  default  of  appointment,  to  the  children  equally;  if  no  child,  accord- 
ing to  their  joint  appointment :  in  default  thereof  to  the  husband  absolutely.  But 
see  15  Ves.  juii.  551.  655. 


PRESENT   LAW    OF    DOWER.  273 

fraudulent  execution  of  a  power.     Most  of  the  cases  have  turned 
upon  the  power  of  jointuring.  («) 

*40.  But  although  a  man  upon  his  death-bed  exercise  [  *230  ] 
a  power  of  jointuring,  as  Mr.  Wycherley  did,  really 
with  a  view  to  obtain  a  portion  and  not  a  wife,  yet  the  execution 
cannot  be  deemed  fraudulent.  This  was  decided  by  Lord  Parker, 
assisted  by  Lord  C.  J.  Pratt  and  Sir  Joseph  Jekyll,  Master  of  the 
Rolls,  upon  a  bill  filed  by  the  remainder-man  to  be  relieved 
againsi  the  jointure  made  by  the  tenant  for  life  even  upon  his 
death-bed,  in  consideration  of,  and  previous  to  his  marriage,  by 
virtue  of  the  power  reserved  to  him. (6)  Lord  Hardwicke  states 
it  as  a  case  in  which  the  remainder-man  refusing  to  join  and 
charge  the  estate  with  the  tenant  for  life's  debts,  he  said  "  I  will 
marry  and  execute  my  power,  (c)(1) 

(a)  Vide  supra,  ch.  11. 

(6)  See  Wicherley  v.  Wicherley,  2  P.  Wms.  619,  cited;  Lane  v.  Page,  Ambl.  225; 
App.  No.  26. 

(c;  See  Ambl.  234. 

(I)  In  Wycherley's  life  it  is  said,  that  he  had  often  declared  that  he  was  resolved 
to  die  married,  though  he  could  not  bear  the  thoughts  of  living  married  again;  and 
accordingly,  just  on  the  eve  of  his  death,  he  married  a  young  gentlewoman  of  1,500L 
fortune,  part  of  which  he  applied  to  the  uses  he  wanted  it  for;  eleven  days  after  the 
celebration  of  these  nuptials  he  died. 


274 


SUGDEN   ON    POWERS. 


[  -304  ] 


^CHAPTER  XVII. 


OF    POWERS    TO    LEASE. 

We  now  come  to  an  important  branch  of  our  subject,  of  which 
much  has  been  necessarily  anticipated.  It  remains  only  to  con- 
sider :  1.  The  general  rules  of  construction  applicable  to  this 
power,  under  which  head  we  may  introduce  such  scattered  points 
as  do  not  properly  fall  under  the  succeeding  heads  ;  2.  What  may 
be  demised  under  dilTercnt  powers;  3.  For  what  term;  4.  At 
what  rent ;  and,  5.  Subject  to  what  covenants  and  conditious. 


[  *305  ] 


♦SECTION  I. 


OP    THE    GENERAL    RULES     OP    CONSTRUCTION    APPLICABLE    TO    THIS 

POWER. 


2.  General  rule  of  construction.  18. 

3.  Application  of    decisions    under  en- 

abling and  restraining  statutes.  10. 

4.  Where  suspended  or  extinguislied. 

6.  Contracts  for  leases  under  powers  en-    20. 
forced:  no  decree  for  damages.       "    21. 
6.  Void  lease  not  set  up  by  acceptance  of 

rent.  23. 

But  it  renders  notice  to  quit  necessary.    2-1. 
Same  rules  apply  to  equitable  estates. 
When  a  lease  operates  out  of  the  in-    25. 

terest  and  may  be  contirmeJ.  i 

Confirmation  by  a  tenant   for  life  not  ,  26. 
binding  upon  remainder-man. 
12.  If  lessee  allowed  to  rebuild,  &c.,  by    27. 

rctnaindor-man,  the  latter  is  bound.  1 
15.  No  relief  in  equity  of  compensation  for  |  28. 
expenditure  j  29. 

17.  Acceptance  of  rent  under  void  lease  I 

does  not  bind  remainder-man  by  a    30. 
covenant  to  renew. 


Lessee  and  assignee  bound  by  cove- 
nant to  repair  in  void  lease. 

Lease  may  be  granted  to  a  trustee  for 
the  lessor. 

Power  may  be  executed  toties  quoties. 

Where  lease  will  cease  on  non-pay- 
ment of  rent. 

To  whom  the  power  extends. 

Where  building  lease  not  authorized 
by  articles. 

Where  powers  of  leasing  are  autho- 
rized. 

Power  by  statute  to  infants  and  femes 
Ofevert  to  renew. 

Like  power  to  inf  mt  to  leivse  his  own 
estate. 

And  to  committees  of  lunatics. 

How  trustees  of  a  power  of  leasing 
should  act. 

Operation  of  a  lease  under  a  power, 
and  of  covenants  in  it. 


1.  Lord  Manspield  truly  observcd,(a)   that  of  all  kinds  of 

(a)  1  Burr.  120,  121. 


GENERAL  RULES  OP  CONSTRUCTION.  275 

powers,  the  most  frequent  is  that  "  to  make  leases."  For  the  en- 
couragement of  farmers  to  occupy,  stock  and  improve  the  land,  it 
is  necessary  they  should  have  some  permanent  interest.  Unless 
the  owner  of  the  estate  for  life  was  enabled  to  make  a  permanent 
lease,  he  could  not  enjoy,  to  the  best  advantage,  dur- 
ing his  own  time  ;  and  *they  who  come  after  must  suf-  [  *306  ] 
fer,  by  the  land  being  untenanted,  out  of  repair,  and  in 
a  bad  condition.  The  plan  of  this  power  is  for  the  mutual  ad- 
vantage of  possessor  and  successor.  The  execution  thereof  is 
checked  with  many  conditions,  to  guard  the  successor,  that  the 
annual  revenue  shall  not  be«diminished,  nor  those  in  succession  or 
remainder  at  all  prejudiced  in  point  of  remedy,  or  other  circum- 
stances of  full  and  ample  enjoyment. 

2.  Formerly  a  distinction  used  to  be  taken  between  a  power  to 
a  stranger  having  a  ])articular  estate,  and  a  power  reserved  by  the 
owner  of  the  fee,  which  latter  it  has  been  said,  is  to  receive  a 
more  libei-al  construction  than  the  other.  But  this  doctrine,  which 
has  so  direct  a  tendency  to  introduce  different  decisions  on  the 
same  words,  appears  to  be  completely  exploded  at  the  present 
day.  The  question,  Lord  Ellcnborough  observed,  in  Hawkins  and 
Kemp,  which  turned  upon  the  power  of  revocation,  should  depend 
upon  what  is  a  fair  construction  of  the  clause  giving  the  power, 
in  making  which  the  Court  is  to  decide  according  to  what  they 
shall  judge  to  be  the  intention  of  the  parties,  not  restraining  or 
lessening  the  power  by  a  narrow  and  rigid  construction,  nor 
by  a  loose  and  extended  interpretation  dispensing  with  the 
substance  of  what  was  meant  to  be  performed. (6)  An  opinion 
has,  however,  prevailed  that  a^  power  of  leasing  is  to  receive  a 
more  strict  construction  than  any  other  power, (c)  and  that  equity 
cannot  relieve  against  a  defect  in  the  execution  of  it ;  but  we 
have  already  seen  that  this  relief  is  administered  in  proper 
cases, (f/)  and  the  books  abound  with  authorities  in  favour  of  the 
liberal  construction  of  this  power.  Lord  Mansfield,  whose 
authority  is  generally  quoted  in  favour  of  the  rigid  construc- 
tion,(e)  seems  merely  to  have  meant  that  the  power  must  not  be 
abused. (/)     Lord  Chancellor  Cowper  thought  the  power  was  to 

(//)  3  East,  441.  (c)  Sec  Fitz.  219;  3  Vin.  Abr.  431. 

{(I)  Vide  supra,  p.  131.  (e)  See  1  Burr.  121. 

(/)  Dougl.  573;  1  Blackst.  449. 


27G  SUGDEN   ON  POWERS. 

[  *307  ]  be  taken  "strictly  :(ir)  but  Lord  Chief  Justice  Holt,  in 
the  same  case,  was  of  a  contrary  opinion, (//)  and  that 
was  the  opinion  of  Bridgman,  C.  J.(t)  Loril  Ivenyun  lias  decided 
that  the  intention  of  the  parties  must  govern  in  tlie  construction 
of  this  })ower,(A")  and  Lord  Redcsdale  has  shown,  upon  very  solid 
grounds,  that  the  ])owcr  must  receive  as  liberal  an  interpretation 
as  a  })()wer  of  jointuring  or  any  other  power.(/)  In  the  construc- 
tion, tliercfore,  of  powers  of  leasing  we  may  call  in  aid  the  rules 
established  in  regard  to  other  powers. 

3.  The  decisions  upon  leases  by  tenants  in  tail  and  ecclesiastical 
persons,  under  the  statutes,  have  been  said  to  apply  with  equal 
force  to  leases  under  poAvers  in  settlements ;  but  this  position  is 
certainly  not  well  founded :  in  several  instances  those  decisions 
^ven  diifer  from  each  other,  according  to  the  words  of  the  statutes 
upon  which  they  severally  arose.  In  the  course  of  the  ensuing 
in(]uiry  it  will  appear  generally  how  far  those  determinations 
apply  to  tlie  subject  before  us. 

4.  Wc  have  ali-cady  seen  where  a  power  of  leasing  is  suspended 
or  extinguished,  (m) 

5.  And  we  have  seen  that  an  agreement  in  writing  by  a  donee 
of  a  power  of  leasing,  to  grant  a  lease  warranted  by  the  power, 
will  bind  the  remainder-man,  who  will  also  be  entitled  to  enforce 
it;(w)  but  that  a  parol  agreement  cannot  be  enforced  against  him. 
A  lessee  being  considered  as  a  purchaser  pro  tanto,  is  in  like 
manner  entitled  to  have  a  defective  lease  made  good  against  the 
remainder-man,  where  the  defect  is  in  form  and  not  in  su])stance.(o) 
Thus  if  the  term  is  longer  than  the  power  authorizes,  it  will' be 

sustained  pro  tanto  in  equity  ;(/>)  so  if  the  lease  ought 
[  *308  ]  to  be  in  possession,  *but  an  old  lease,  although  aban- 
doned, has  not  been  surrendered,  equity  will  consider  it 

(g-)  See  3  Cha.  Rep.  73. 
(ft)  Ib"ul.  GO,  70. 
(0  Britlg.  by  Ban.  90,  01. 
(fc)  3  Term  Rep.  675. 

(0  1  Sch.  &  Lef.  61;  vide  supra,  p.  138;  and  see  2  Brod.  &  Bing.  605,  per  Lord 
Eldon. 

{m)  Vide  supra,  vol.  1,  p.  50. 
(n)  Supra,  p.  121.  123. 
(o)  Ibid, 
(p)  Supra,  p.  75. 


AGREEMENT   FOR   LEASE   BINDING.  277 

as  done,  and  support  the  lease  ;(^)  but  if  the  lease,  which  ought 
to  be  in  possession,  is  infuturo,(r}  equity  cannot  aid. 

In  a  case  where  there  was  an  imperfect  parol  agreement,  which 
was  held  not  to  be  binding  on  the  remainder-man  and  the  tenant, 
on  the  faith  of  the  contract,  had  expended  a  large  sum  in  building, 
equity  refused  to  give  him  any  compensation  for  his  expenditure 
against  the  assets  of  the  tenant  for  life ;  for  that  would  be  a 
decree  merely  for  damages,  and  not  a  compensation  for  the  benefit 
his  estate  had  received. (a-) 

6.  Where  a  lease  is  granted  which  is  void  under  the  power,  no 
acceptance  of  rent  by  the  remainder-man  can  set  it  up  ;  for,  though 
an  acceptance  of  rent  may  make  a  voidable  lease  good,  it  cannot 
make  good  a  lease  which  was  actually  void  at  first.  (Q  Now,  if  a 
man  having  a  naked  power  make  a  deed  or  a  lease  not  warranted 
by  his  power,  such  deed  or  lease  is  certainly  void,  and  not  voida- 
ble only.(w)  In  Doe  v.  Butclier,(t;)  a  tenant  for  life,  without  a 
power  of  leasing,  granted  a  long  lease  for  years,  determinable  on 
the  lives  of  the  lessee  and  two  other  persons.  The  lessee,  after 
the  death  of  the  lessor,  laid  out  considerable  sums  of  money  in 
improving  the  lands  ;  and  more  than  twenty  years  after  the  death 
of  the  tenant  for  life,  the  remainder-man  upon  the  dropping  of  a 
life  granted  a  new  lease  to  the  lessee,  from  and  after  the  death  of 
the  lessee  and  the  other  life,  for  ninety-nine  years,  if  a  new  life 
should  so  long  live,  and  afterwards  granted  another  like  lease 
upon  the  dropping  of  a  new  life,  and  the  lessee  paid  his 

rent  to  the  remainder-man  Tor  about  thirty  years,  and  [  *309  ] 
rendered  heriots,  and  was  treated  as  a  tenant  of  the 
manor ;  but  the  acts  were  held  jiot  to  operate  at  law,  as  a  confir- 
mation of  the  first  lease,  or  a  new  grant ;  and  the  decision  would 
have  been  the  same  had  the  lease  been  badly  granted  under  a 
power. 

7.  The  acceptance  of  rent,  however,  as  rent,  will  operate  as  an 

(q)  Supra,  p.  137. 

(r)  Ibid. 

(s)  Blore  v.  Sutton,  3  Mer.  237.  See  1  Scbo.  &  Lef.  74;  Stanford  v.  Omly,  ib.  65, 
citeil. 

(0  Jones  V.  Verney,  Willes,  169;  Doe  v.  Watts,  7  Term  Rep.  83;  and  see  Doe  v. 
Butcher,  Dougl.  50;  Bowes  v.  E.  L.  Waterworks  Company,  Jacob,  324. 

(w)  Per  Willes,  C.  J.,  Willes,  177. 

(v)  Dougl.  50;  and  see  Goodright  v.  Humphreys,  Dougl.  52,  n. 

Vol.  II.  24 


278  SUGDEN   ON   POWERS. 

adinision  by  the  remainder-man  that  the  lessee  is  his  tenant,  and 
in  that  case  he  is  entitled  to  notice  to  quit. (re)  So  the  acceptance 
from  the  tenant  of  any  service  reserved  by  the  lease,  as  the  car- 
rying of  coals  to  the  lessor's  house,  will  of  course  have  the  like 
effect,  (y) 

8.  But  this  is  a  ])oint  to  bo  d(?ci(iod  by  a  jury.  In  a  late  case 
the  Court  thouglit,  tliat  though  the  receipt  of  rent  is>some  evi- 
dence of  a  tenancy,  yet  that  if  tlic  rent  paid  were  greatly  dispro- 
portionate to  the  actual  value,  the  jury,  although  it  would  be 
peculiarly  their  })rovince  to  decide,  would  probably  receive  a  very 
strong  direction  to  decide  against  a  tenancy. (c)  The  fair  infer- 
ence, however,  of  a  tenancy  by  receipt  of  rent,  ought  not,  it  may 
be  tliought,  to  depend  upon  the  quantum  of  rent. 

9.  The  same  rules  would  prevail  as  to  confirmation :  where  the 
lessor  had  full  legal  ability  to  grant  the  lease  out  of  his  interest, 
but  an  insufficient  equitable  power,  as  in  the  instance  of  a  trustee 
of  the  fee,  with  a  limited  equitable  power, — the  receipt  of  rent  by 
the  cestui  qve  trust  would  not  of  itself  confirm  the  lease  in  equi- 
ty ;(«)  and  if  the  lease  were  merely  of  the  equitable  estate,  yet 
the  receipt  of  rent  by  the  equitable  remainder-man  would  not 
make  the  lease  good. (6) 

10.  Sometimes,  although  a  poAver  not  being  pursued  will  not 
support  a  lease  granted  by  a  donee,  yet  it  will  not  prevent  it 

from  operating  out  of  his  interest,  with  or  without  cou- 
[  *310  ]  firmatiou.     *Thus,  if  a  tenant  for  life,  with  remainder 

to  sucli  uses  as  he  should  a])point  generally,  and  with  a 
limitation  to  himself  in  fee  in  default  of  appointment,  were  to 
grant  a  lease  not  authorized  by  the  power,  it  would  without  any 
further  act  operate  by  force  of  his  interest ;  and  where  an  estate 
was  so  limited  in  favour  of  a  married  woman,  and  she  and  her 
husband  granted  a  lease  not  warranted  by  the  power,  and  she 
received  rent  after  her  husband's  death,  the  lease  was  held  to  be 
only  voidable,  and  her  receipt  of  rent  after  her  husband's  death 
confirmed  it ;  and  a  will  made  by  her  under  her  power,  prior  to 

(i)  Doe  V.  Watts,  ubi  sup. 

(i/)  Doe  V.  Morse,  1  Barn.  &  Adol.  365. 

(z)  Roe  V.  Prideanx,  10  East,  158. 

(a)  Bowes  v.  E.  L.  W.  W.  Companj,  3  Madd.  375;  Jacob,  324. 

{b)  Willes,  170,177. 


EFFECT  OF  ACCEPTANCE  OF  RENT.  279 

granting  the   lease,  was   considered  pro  tanto   revoked   by  the 
lease. (c) 

11.  If  a  remainder-man  is  himself  but  tenant  for  life,  no  act  of 
confirmation  l)y  him  can  bind  those  in  remainder  after  him.(c?) 

12.  But  if,  as  we  have  seen,  a  remainder-man  lies  by,  and 
suffers  the  lessee  to  rebuild,  equity  will  compel  him  to  grant  a  new 
lease,  althougli  the  covenants  in  the  existing  lease  will  be  re- 
formed, if  necessary. (e) 

13.  So  it  has  been  said,  that  if  a  remainder-man,  when  he  suc- 
ceeds to  the  property,  does,  with  the  full  knowledge  of  the  imper- 
fection of  the  leases,  and  in  consideration  of  the  lessees  agreeing 
to  continue  tenants,  consent  to  leave  them  undisturbed,  that  would 
amount  not  to  a  confirmation  of  the  lease,  because  he  could  not 
confirm  for  those  who  stood  behind  him,  but  to  an  agreement  by 
which  he  would  be  bound  for  his  life,  if  the  leases  continued  so 
long.(/) 

14.  The  act  of  one  remainder-man  clearly  would  not  bind  an- 
other after  him.  If  one  tenant  for  life  allow  the  lessee  to  make 
improvements,  and  a  remainder-man,  when  he  comes  into  posses- 
sion, allow  the  lessee  to  take  the  benefit  of  them,  it 

would  be  no  ground  for  saying  that  the  latter  ought  *not  [  *311  ] 
to  set  aside  the  lease  ;  and   improvements,  to  bind  a 
man,  must  of  course  be  made  with  his  knowledge. (»■)     If  the 
lease  cannot  be  supported,  there  can  be  no  compensation  for  the 
improvements.  (//) 

15.  In  Jones  v.  Verney,  the  Court  were  of  opinion,  that  al- 
though the  lessee  had  built,  yet  as  he  was  not  bound  as  he  ought 
to  have  been  by  his  lease  to  build,  his  voluntary  act  would  not 
make  good  the  lease.  But  they  confined  this  to  law,  and  said 
that  this,  though  it  could  make  no  alteration  at  law,  mio-ht  in 
equity,  for  the  lessee,  if  evicted,  would  probably  be  able  to  obtain 
satisfaction  there  for  the  lasting  improvements  which  he  had 
made.     But  such  is  not  the  rule  in  equity,  for  the  assets  of  the 

(c)  Doe  V.  Weller,  7  Term  Rep.  478. 

(f/)  Bowes  V.  E.  L.  W.  W.  Company,  ubi  sup. 

(€)  Stiles  y.  Cowper,  3  Atk.  692.     See  1  Sch.  &  Lef.  72. 

(/)  3  Madd.  384,  per  Leach,  V.  C. 

(g)  Jacob,  381,  332,  per  Lord  Eldon. 

(A)  S.  C.  and  Blore  v.  Sutton,  3  Mer.  237. 


280  SUGDEN  ON  POWERS. 

lessor  could  not  be  charged,  unless  under  some  express  covenant 
in  the  lease;  and  of  course  the  remainder-man,  who  had  simply 
received  the  rent,  would  not  be  so  liable. 

16.  At  the  end  of  Doe  v.  Butcher,  the  learned  Reporter  queries 
whether  in  that  case  the  tenant  might  not  have  been  relieved  in 
equity.  Clearly  there  was  no  gi'ound  for  equitable  interference, 
unless  the  expenditure  by  the  lessee  in  improvements  was  with 
the  knowledge  of.  the  remainder-man,  and  of  a  nature  and  to  an 
extent  to  entitle  the  lessee  to  relief. 

17.  Where  a  lease  not  warranted  by  the  power  contains  a  cove- 
nant for  perpetual  renewal,  the  reversioner,  by  accepting  for  many 
years  the  rent  reserved  by  the  lease,  does  not  l)ind  himself  to 
perform  the  covenant. (i) 

18.  But  although  a  lease  under  a  power  be  void,  yet  an  enjoy- 
ment of  the  estate  accompanied  by  a  payment  of  the  rent,  will 
bind  even  an  assignee  of  the  lease,  who  has  not  re-assignpd,  to 
repair  to  the  end  of  the  term  if  there  be  a  covenant  to  that  effect 

in  the  void  lease.     For  although  the  lease  is  void,  yet 
[  *312  ]  if  a  party  hold  the  property  to  the  end  of  the  *term 

and  continue  to  pay  the  rent,  he  is  liable  to  all  the 
stipulations  contained  in  the  lease,  in  the  same  way  as  a  tenant^ 
who  holds  over  upon  the  expiration  of  a  valid  lease.  lie  cannot 
of  course  l)e  sued  in  covenant,  but  the  occupation  on  the  terms  of 
the  lease  furnishes  the  measure  of  damages.  But  the  impliert 
assumpsit  to  repair  does  not  extend  beyond  the  period  of  the 
lease.  (7  ) 

19.  Where  the  terms  of  the  power  are  complied  with,  it  is  no 
objection  that  the  lease  is  granted  in  trust  for  the  lessor  himself, 
for  that  is  a  question  merely  between  the  parties.  It  is  just  the 
same  thing  as  between  the  lessor  and  the  successor,  where  the 
legal  tenant  is  bound  during  the  term  in  all  requisite  covenants 
and  conditions. (A:) 

20.  It  is  of  the  very  nature  of  this  power  that  it  may  be  exer- 
cised toties  quoties.  The  oh^Qciis^  subject  to  the  restrictions,  to 
place  the  tenant  for  life  in  the  situation  of  an  owner  in  fee, 
Bridgeman,  C.  J.,  said,  that  in  Leper  and  Wroth  it  was  agreed 

(i)  Higgings  v.  Lord  Rosse,  2  Bligh,  112. 
(;■  )  Beale  v.  Sanders,  3  Bing.  N.  C.  850. 

(/r)  Wilson  v.  b'ewell,  1  Blackst.  617;  Earl  of  Cardigan  v.  Montague,  App.  No.  13; 
Taylor  v.  Horde,  1  Burr.  60. 


OF  LEASES  BY  INFANTS  UNDER  STATUTE.         281 

(as  he  had  it  in  a  good  report  of  that  case,)  that  though  the 
power  was  indefinite  to  make  leases  for  twenty-one  years,  Avithout 
the  words  totks  qiioties,  yet  when  one  lease  so  made  was  expired, 
the  lessor  by  virtue  of  his  power  might  make  another  lease  in 
possession,  though  he  could  not  make  a  reversionary  lease. (/) 

21.  A  power  to  lease  will  not,  without  an  actual  necessity,  be 
construed  to  authorize  a  lease  only  whilst  the  rent  is  paid,  so  that 
for  non-payment  it  will  cease  in  point  of  limitation  ;(m)  nor  will 
a  lease  itself  be  so  construed,  if  by  fair  construction,  instead  of 
becoming  void  by  non-payment,  it  may  be  considered  voidable  at 
the  election  of  the  lessor  by  re-entry. 

*22.  But  where  the  power  was  to  make  leases  for  [  *313  ] 
lives  or  years,  reserving  the  rents  then  yielded,  so  long 
as  the  lessees,  their  executors  and  assigns,  should  pay  their  rents 
and  perform  their  covenants  according  to  the  true  meaning  of 
their  indenture  of  lease,  and  the  leases  granted  had  the  same 
words  inserted  in  them,  and  the  rents  were  in  arrear,  but  were 
paid  within  a  month,  and  there  had  been  no  demand,  it  was  held 
that  the  words  so  long  as,  &c.  were  words  of  limitation,  and 
therefore  the  leases  determined  upon  non-payment  of  rent  at  the 
day.(«)  It  was  of  course  agreed  that  the  leases  would  not  have 
*becn  valid  if  the  lessees  had  not  been  made  subject  to  the  limita- 
tions in  the  power  ;  and  it  was  held  that  equity  could  give  no 
relief  to  the  lessee  in  such  a  case.(o) 

23.  Whether  a  power  of  leasing  extends  to  all  the  persons 
entitled  under  the  instrument  creating  it,  or  only  to  some  in  par- 
ticular, depends  not  upon  the  place  where  the  power  is  inserted, 
but  upon  the  fair  construction  of  the  whole  instrument  taken 
together.  (;?)  Where  a  power  is  general,  the  Court  cannot  con- 
fine it,  unless  upon  the  due  construction  of  the  whole  instrument. 

24.  In  a  case(<7)  where  the  articles  before  marriage  stipulated 
that  the  settlement  should  contain  a  power  of  leasing  for  twenty- 

</)  Bridg.  by  Ban.  97. 

(m)  Berry  v.  White,  Bridg.  by  Ban.  82. 

(n)  Tristram  v.  Lady  Baltinglass,  Vaugh.  28;  T.  Jo.  27,  nom.  Tustian  v.  Lady 
Baltinglass. 

(o)  Temple  v.  Lady  Baltinglass,  Finch.  275. 

(p)  See  Forster  v.  Graham,  2  Str.  961;  2  Barn.  B.  R.  341.  428;  Right  v.  Smith, 
12  East,  455.     See  Collett  v.  Hooper,  13  Ves.  jun.  255. 

(<])  Pearse  v.  Baron,  Jac>  158. 

2-4*  • 


2<S2  SUGDEN   ON   POWERS. 

one  years  in  possession,  a  poAver  of  sale  and  exchange,  of  appoint- 
ing new  trustees,  "  and  all  such  other  powers,  provisoes,  clauses, 
covenants  and  agreements  as  arc  usually  inserted  in  settlements 
of  the  like  nature,"  it  was  held  that  a  power  to  grant  building 
leases  for  the  usual  term  was  not  authorized  by  the  articles. 

25.  A  stij)ulation  in  articles  for  a  settlement  of  estates  in 
Ireland,  that  the  settlement  should  contain  all  the  covc- 
[  '314  ]  nants,  ^provisions,  and  conditions  usually  contained  in 
marriage  settlements  in  England,  was  held  to  author- 
ize proper  powers  of  leasing,  and  it  was  referred  to  the  Master 
to  inquire  whether  proposed  powers  to  lease  for  thirty-one  year.s 
at  rack-rent,  and  to  renew  leases  containing  covenants  for  per- 
petual renewal,  and  to  lease  for  lives  or  for  years  determinable 
upon  lives  at  rack-rent,  and  to  grant  building  and  repairing 
leases  and  leases  of  mines,  were  usual  powers  in  that  part  of  Ire- 
land where  the  estates  were  situated,  and  whether  there  were  any 
circumstances  connected  with  the  property  which  rendered  it  ex- 
pedient and  for  the  interest  of  all  parties  that  such  powers  should 
be  introduced,  (r) 

2G.  We  may  here  notice  a  provision  in  the  1  Will.  4,  c.  65,  s. 
16,  by  which,  where  an  infant  or  a  feme  covert  might,  in  pursu- 
ance of  any  covenant  or  agreement,  if  not  under  disability,  be 
com[)elled  to  renew  any  lease  made  or  to  be  made  for  the  life  or 
lives  of  one  or  more  person  or  persons,  or  for  any  term  or  number 
of  years  absolute  or  determinable  on  the  death  of  one  or  more 
person  or  persons,  it  is  made  lawful  for  such  infant  or  his  guardian 
in  the  name  of  such  infant,  or  such  feme  covert,  by  the  direction 
of  the  Court  of  Chancery  or  Exchequer,  to  be  signified  by  an 
order  to  be  made  in  a  summary  way  upon  the  petition  of  such 
infant  or  his  guardian,  or  of  such  feme  covert,  or  of  any  person 
entitled  to  such  renewal,  from  time  to  time  to  accept  a  surrendei- 
of  such  lease,  and  to  make  and  execute  a  new  lease  of  the  premises 
comprised  in  such  lease,  for  such  number  of  lives,  or  for  such 
term  or  terms  of  years  determinable  upon  such  number  of  lives, 
or  for  such  term  or  terms  of  years  absolute,  as  was  there  jnen- 
tioned  in  the  lease  so  surrendered  at  the  making  thereof,  or  other- 
wise as  the  Court  hj  such  order  shall  direct. 

(r)  Duke  of  Bedford  v.  Marq.  of  Abercom,  1  Myl.  &  Cra.  312. 


OF  LEASES   BY   INFANTS   UNDER   STATUTE.  283 

27.  And  by  another  provision  of  the  same  act,(5) 

it  is  'provided,  that  where  an  infant  is  entitled  to  any  [  *315  ] 
land,  (fee.  in  fee  or  in  tail,  or  to  any  leaseholds  for  an 
absolute  interest,  and  it  shall  appear  to  the  Court  of  Chancery  or 
Exchequer  to  be  for  his  benefit  that  a  lease  or  underlease  should 
be  made  of  such  estates  for  terms  of  years,  for  encouraging  the 
erection  of  buildings  thereon,  or  for  repairing  buildings  actually 
being  thereon,  or  the  working  of  mines,  or  otherwise  improving 
the  same,  or  for  farming  or  other  purposes,  it  shall  be  lawful  for 
such  infant,  by  the  direction  of  the  Court,  to  be  signified  by  an 
order  to  be  made  in  a  summary  way  upon  the  petition  of  such 
infant  or  his  guardian,  to  make  such  lease  of  the  property  for 
such  term  or  terms  of  years,  and  subject  to  such  rents  and  cove- 
nants, as  the  Court  shall  direct,  but  in  no  case  shall  any  fine  or 
premium  be  taken  ;  and  in  every  such  case  the  best  rent  that  can 
be  obtained,  regard  being  had  to  the  nature  of  the  lease,  shall  be 
reserved  upon  such  lease,  and  the  leases  and  covenants  and  pro- 
visions therein  shall  be  settled  and  approved  of  by  a  Master  of 
the  said  Court,  and  a  counterpart  of  every  such  lease  shall  be 
executed  by  the  lessee  or  lessees  therein  to  be  named,  and  such 
counterpart  shall  be  deposited  for  safe  custody  in  the  Master's 
t)ffice  until  such  infant  shall  attain  twenty-one,  but  with  liberty  to 
proper  parties  to  have  the  use  thereof  if  required  in  the  mean 
time,  for  the  purpose  of  enforcing  any  of  the  covenants  therein 
contained  ;  provided  that  no  lease  be  made  of  the  capital  man- 
sion-house, and  the  park  and  grounds  respectively  held  therewith, 
for  any  period  exceeding  the  minority  of^any  such  infant. 

28.  AVe  have  already  seen  that  committees  of  lunatics  are,  in 
certain  cases,  authorized  to  exercise  powers  of  leasing  vested  in 
the  lunatic,  (i!) 

29.  Where  trustees  are  invested  with  a  power  of  leasing,  they 
nmst  act  in  the  exercise  of  it  precisely  As  if  the  estate  was  given 
to  them  in  trust  to  let.(«) 

*39.  A  lease  granted  under  a  power,  like  every  other  [  *316  ] 
estate  so  raised,  takes  effect  as  if  it  were  contained  in 
the  instrument  creating  the  power ;  and  therefore,  in  the  common 

(0  1  w.  4,  c.  c.  65,8.  17. 

(0  1  W.  4,  c.  05,  s.  23.    Vide  supra,  vol.  1,  p.  226. 

(u)  See  Sutton  t.  Jones,  15  Ves.  jun.  588. 


284 


SUGDEN   ON   POWERS. 


■case  of  a  lease  by  a  tenant  for  life  under  a  power,  it  precedes, 
like  a  common  lease,  the  estate  of  the  person  granting  it,  and  he 
takes  the  reversion  expectant  upon  it ;  and  every  remainder-man's 
estate,  as  it  takes  eflcct  in  possession,  stands  in  the  same  relation 
to  tliat  of  the  lessee,  and  the  rents  and  covenants,  and  benefit  of 
provisoes  for  re-entry  and  the  like,  go  to  the  persons  entitled 
under  the  settlement,  in  their  regular,  succession  ;(a:)  and  cove- 
nants authorized  by  the  power  and  entered  into  by  the  lessor 
bind  tiie  remainder-man,  and  it  is  upon  that  ground  that,  as  we 
«hall  see,  the  insertion  of  an  improper  covenant  avoids  the  lease  : 
they  may  properly  be  considered  as  running  with  the  land,  but 
they  are  generally  such  as  the  lessee  can  liimself  reap  the  benefit 
of  without  action  or  suit. (2/)  Such  a  lease  of  course,  operating 
by  way  of  use,  at  once  gives  the  lessee  an  actual  estate,  and  the 
lessor  a  divided  reversion,  without  the  necessity  of  a  previous 
entry. 


{  *317  ]  *SECTION  II. 

WHAT   MAY    BE   DEMISED    UNDER   DIFFERENT   POWERS. 


2.  What  are  lands  usually  lettcn. 
o.  By  whom  the  lettings  should  have  been 
made.  > 

7.  Embrace  every  species  of  demise. 

8.  Where  lands   not    before  let  are  not 

■within  the  power. 
14.  Wlwrc  they  are  within  it,  and  may  be 
kt  without  rent. 

18.  Observations  on  the  cases. 

19.  Evidence  of  former  lettings. 


20.  Distinction   between  opened  and  un^ 

opened  mines. 

21.  Right  of  sporting  over  part  not  let, 

bad. 

22.  Extent  of  a  power  to  let  lands  let  for 

lives. 

23.  Extent  of  an  exception  of  demesnes. 

24.  Property  leased  should  be  properly 

described. 


1.  It  is  seldom  that  any  question  on  this  head  arises  at  the  pres* 
ent  day,  except  upon  wills  unskilfully  penned ;  for  the  power  usually 

(x)  Whitlock's  case,  8  Rep.  69  b.  post;  10  Ves.  jun.  256,  per  Lord  Eldon; 
Butler's  n.  to  Co.  Litt.  214  a;  Harcourt  v.  Pole,  1  And.  273;  Isherwood  v.  Oldknow, 
3  Mau.  &  Selw.  382,  post. 

(y)  Goodtitle  v.  Funucan,  Dougl.  565;  Isherwood  v.  Oldknow,  ubi  sup.  infra. 


WHAT   MAY   BE   DEVISED.  285 

introduced  in  modern  settlements  is  to  lease  all  the  hereditaments 
comprised  in  the  deed  at  the  best  rent,  and  if  the  mansion-house, 
park,  or  any  other  part,  is  not  intended  to  be  leased,  it  is  ex- 
pressly excepted  in  the  power.  However,  the  cases  must  be 
stated  which  have  arisen  in  regard  to  the  subject  over  which  the 
power  rides. 

2.  Where  a  power  extends  to  lands  usually  letten,  lands  whicli 
have  been  twice  or  thrice  letten  are  within  the  power  ){z^  but  the 
land  which  has  only  been  once  letten  is  not,  we  are  told,  within 
the  proviso,  for  usus  fit  ex  iteralis  actibus.(^a)  And  it  is  said, 
that  if  land  has  been  let  by  a  contract  from  year  to  year,  for 
three  years,  it  is  not  within  the  power,  for  it  is  but  one  lease. (6) 
But  Lord  Cliicf  Justice  Yauglian,  upon  citing  this  case  of  a  single 
demise, (f)  said  that  he  did  not  much  insist  upon  it,  for  the  words 
'  usually  demised'  may  be  taken  in  two  senses ;  the  one, 

for  the  'often  farming,  or  repeated  acts  of  leasing  lands,  [  *318  ] 
the  other,  for  the  common  continuance  of  land  in  lease, 
for  that  is  usually  demised,  and  so  land  leased  for  five  hundred 
years  long  since,  is  land  usually  demised  that  is  in  lease,  though 
it  have  not  been  more  than  once  demised,  which,  he  justly  added, 
is  the  more  received  sense  of  the  words  land  usually  demised. 
Indeed,  the  common  sense  of  mankind  must  revolt  at  a  distinction 
which  considers  lands  leased  for  one  hundred  years  as  not  usually 
demised  because  the  term  was  granted  by  one  deed,  but  allows 
bxnd  to  come  within  that  description  which  has  been  let  for  two 
years  only,  on  two  distinct  lettings.  • 

3.  In  the  case  of  Tristram  and  Lady  Baltingiass,  the  power 
was  "  to  demise  all  or  any  of  the  premises  which  at  any  time 
heretofore  have  been  usually  letten,  for  three  lives,  or  any  number 
of  years  determinable  on  tlirec  lives,  reserving  the  rent  thereupon 
now  yielded  and  paid."  The  settlement  was  made  in  the  twelfth 
of  Jac.  and  the  jury  found  the  lands  in  question  to  have  been  de- 
mised in  the  twelfth  of  Eliz.  for  twenty-one  years,  and  that  term 
was  expired,  and  they  had  not  been  demised  for  the  space  of 
twenty  years  before  the  settlement ;  and  the  Court  held  that  they 
were  not  within  the  power.     The  word  usually,  excluded  demises 

(r)  2  Ro.  Abr.  261,  pi.  11,  12;  Vaugh.  33. 
(«)  2Ro.  Abr.  2G3,  pi.  18. 
(A)  2  Ro.  Abr.  2G2,  pi.  14;  contra  P.  2  Ja.  B. 
(c)  See  Vaugh.  28;  Tho.  Jones,  27. 


286  SUGDEN   ON  POWERS. 

at  a  great  distance  of  time,  and  the  words  "  any  time  "  in  this 
case,  meant  "  at  all  times."  And  what  was  not  farmed  twenty 
years  before  could  not  be  said  to  be  at  any  time  before  commonly 
farmed  ;  for  those  twenty  years  was  a  time  l)efore  in  which  it  was 
not  farmed.  And  the  power  requiring  the  rents  then  reserved  to 
1)0  made  payable,  necessarily  implied  that  the  land,  demisable 
under  the  power  was  land  which  was  then  under  rent.(<f)  The 
case  of  Foot  v.  Marriot,(e)  which,  although  it  turned  upon 
special  words,  was  a  case  to  the  like  effect,  was  decided  the  same 

way  by  Lord  Chancellor  King,  assisted  by  Lord  Chief 
[  *319  ]  Justice  Raymond,  *Mr.  Justice  Denton,  and  Mr.  Baron 

Comyns,  simply  upon  the  authority  of  Tristram  and 
Baltinglass. 

4.  This  last  case,  we  must  observe,  did  not  decide  affirmatively^ 
that  land  demised  within  twenty  years  was  subject  to  the  power, 
but  merely  that  land  not  demised  within  that  period  was  not  sul)- 
ject  to  the  power.  It  remains  to  be  decided  within  what  period 
the  land  must  have  been  demised.  The  Courts  might  probably 
incline  to  fix  twenty  years  as  the  limit,  by  analogy  to  the  enabling 
statute  of  32  H.  8,  c.  28,  which  in  a  similar  case  considered  that 
as  a  reasonable  period. 

5.  L'pon  this  statute  it  has  been  very  properly  determined,  that 
the  lottings  to  which  it  refers  are  by  some  person  seised  of  an  _ 
estate  of  inheritance,  and  not  by  tenant  by  the  courtesy,  ^ 
dower,  <fec.(/)  But  the  same  doctrine  cannot  be  applied  to 
powers  in  private  settlements,  although  a  contrary  opinion  has 
been  entertained.  The  act  of  Henry  was  intended  to  have  a 
general  and  perpetual  operation,  it  was  therefore  absolutely 
necessary  to  establish  by  Avliom  the  lettings  must  have  been  made, 
so  as  to  authorize  subsequent  demises,  and  it  would  have  ill  ac- 
corded with  the  true  spirit  of  the  act  to  have  holden  that  demises 
by  ])crsons  having  partial  interests  only  constituted  the  standard^ 
to  which  the  statute  refers.     But  in  the  case  of  a  power  raised  by 

a  private  settlement,  the  party  creating  it  must  be  considered  to 
know  that  the  lauds  have  l)ecn  in  lease,  and  l^y  whom  the  leases 
were  granted,  and  tlicrefore,  when  he  authorizes  the  lands  usually 

(rf)  2  Jo.  27;  Vaugh.  28;  1  Freem.  23.     As  to  the  last  ground,  vide  infra. 

(e)  3  Vin.  Abr.  42i),  pi.  0 . 

(/)  Co.  Litt.  44  b;  Dy.  271  b,  pi.  28. 


WHAT  MAY   BE   DEMISED.  287 

demised  to  be  leased,  to  what  can  he  refer  unless  to  the  leases 
which  have  been  theretofore  actually  granted  ?  If  he  disapprove 
of  any  lands  being  let,  which  usually  have  been  leased,  it  behooves 
hiL''  to  expressly  declare  his  intention  by  excepting  them  out  of 
the  power. 

6.  In  Right  v.  Thomas. (^)  a  power  in  a  settlement 

made  *in  1737  to  lease  for  one,  two,  or  three  lives,  or  [  *320  ] 
for  years  determinaljle  on  one,  two,  or  three  lives,  any 
part  of  the  estate  which  had  been  usually  so  letten,  so  as  such 
rent  as  had  been  given  or  received  for  twenty  years  past,  &c., 
were  reserved,  was  held  to  warrant  the  demise  of  an  estate  which 
in  5  Jac.  1  had  been  demised  in  reversion  for  ninety  years,  deter- 
minable on  three  lives, (I)  and  in  1638  had  been  limited  by  the 
owner  by  covenant  to  stand  seised,  after  an  estate  for  life  to  him- 
self, to  his  sou  for  ninety-nine  years,  if  he  or  any  wife  of  his,  or 
any  issue  he  might  have,  sliould  so  long  live,  paying  yearly  unto 
the  lieirs  and  assigns  of  tlie  settlor,  the  yearly  rent  of  41.  quar- 
terly, and  the  son  covenanted  to  pay  the  rent  and  perform  the 
covenant ;  which  term  commenced  in  1643,  and  ceased  in  1738, 
so  that  at  the  time  of  the  settlement  the  lease  was  in  being.  The 
Court  seems  properly  to  have  considered  that  the  lands  had  licen 
let  as  required,  and  that  tho  limitation  in  the  settlement  was  in 
all  respects  a  lease  :  tlie  lessor's  l)ounty  to  his  child  arose  not 
from  granting  the  lease,  but  from  remitting  the  fine. 

7.  Upon  the  construction  of  the  words  usually  demised,  it  has 
been  determined  that  they  emljrace  every  species  of  demise — at 
will,  from  year  to  year,  or  for  years,  or  lives,  and  whether  granted 
by  parol  or  by  deed,  by  copy  of  court-roll,  covenant  to  stand  seised, 
or  any  other  instrument  :(/i)  ))ut  whatever  the  instrument,  it  must 
operate  as  a  lease  in  the  sense  of  the  term  demise  in  the  given 
power. 

8.  We  have  before  seen  that  one  point  relied  on  in  Lady  Balt- 
inglass's  case  was,  that  the  rent  then  reserved  was  to  be  made 

(g)  1  Blackst.  446;  3  Burr.  1441.  See  the  note  to  the  [last  edition,  and  Doe  v. 
Halcombe,  7  Term  Rep.  713;  post. 

(A)  Co.  Litt.  44  b;  Baugh  v.  Haynes,  Cro.  Jac.  76;  S.  C.  6  Rep.  37,  nom.  Dean 
and  Chapter  of  Worcester's  ca.se;  S.  C.  Mo.  759,  nom.  Banks  v.  Brown;  Right  v. 
Thomas,  3  Burr.  1441 ;  1  Blackst.  446. 

(I)  In  Burrow  it  is  state<i,  that  there  were  leases  in  H.  Sth's  time,  some  for  terma 
of  years,  and  some  for  99  years,  determinable  on  three  lives,  atdiflferent  rents. 


288  SUGDEN   ON   POWERS. 

• 

payable,  which  the  Court  thought  necessarily  implied 
[  *821  ]  *t]iat  the  land  demisable  under  the  power  was  laud  which 

was  then  under  rcnt.(i)  And  in  Lord  Mountjoy's  case, 
where  it  was  declared  by  a  private  act  of  parliament  that  no  aliena- 
tion should  be  made  but  only  leases,  &c.,  "  yielding  the  true  and 
ancient  rent,"  it  was  determined  that  land  could  not  be  leased 
whicli  had  never  Ijccn  demised  before.  For  how,  it  was  asked, 
could  a  rent  be  called  tlie  tnie  and  ancient  rent  when  it  issued  out 
of  a  thing  Avhich  was  never  charged  with  any  rent  by  any  reserva- 
tion before  ?(A;) 

9.  So  in  the  case  of  Bagot  and  Oughton,  which  underwent  great 
consideration,  the  power  was  to  lease  "  all  or  any  of*  the  premises, 
at  such  yearly  rents,  or  more,  as  the  same  are  now  let  at  /"  and  a 
lease  was  made  of  the  capital  mansion-house,  which  was  the  fami- 
ly seat,  and  the  demesne  lands,  which  were  never  leased  before. 
And  it  was  determined,  principally  on  the  authority  of  Lady 
Baltinglass's  case,  that  the  lease  was  void,  although  it  was  forcibly 
argued  that  all  the  lands  were  authorized  to  be  leased  ;  and  the 
subsequent  words  were  only  explanatory  of  the  first  part  of 
the  sentence,  "  that  the  lands  usually  let  may  be  let  at  the  usual 

,rent;XO(l) 

10.  Lord  Mansfield,  addressing  Irimsclf  to  this  case,  observed, 
that('Wi)  the  nature  of  the  tilings  howcd  that  the  power  could  not 
be  meant  to  extend  to  letting  the  ancient  manor  house  at  all,  much 
less  to  letting  it  without  reserving  any  rent.  In  a  family  settle- 
ment of  an  estate,  consisting  of  some  ground  always  occupied, 
together  with  the  seat,  and  of  lands  let  to  tenants  upon  rents  re- 
served, the  qualification  annexed  to  the  power  of  leasing,  that  the 

ancient  rent  must  be  reserved,  manifestly  excludes  the 

[  *322  ]  mansion-house,  and  *lands  about  it,  never  let.     No  man 

could  inteud  to  authorize  a  tenant  for  life  to  deprive  the 

representative   of  tlie   family  of  the   use  of  the   mansion-house. 

^   The  words,  in  such  a  case,  show  that  the  power  is  meant  to  ex- 

(i)  Supra,  p.  318. 

(fc)  5  Rep.  3  b;  Mo.  157. 

(0  8  Mod.  249;  Fort.  332. 

(m)  Dougl.  573,  574. 

(I)  This  decision  is  said  to  ha»ve  been  affirmed  in  the  House  of  Lords;  but  the  case 
is  not  in  Brown  :  and,  after  a  diligent  search,  I  have  not  been  able  to  meet  -with  it 
amongst  the  printed  cases  of  that  period. 


WHAT   PART   DEMISED   WITHOUT  EENT.  289 

tend  only  to  what  has  been  usually  let.  By  that  means  the  heir 
enjoys  all  the  premises  in  the  settlement  just  as  they  were  held 
and  enjoyed  ])y  his  ancestor,  the  tenant  for  life  :  He  has  the  occu- 
jmtion  of  what  was  always  occupied,  and  the  rent  of  what  was 
always  let.  The  Court,  Lord  Mansfield  added,  all  therefore  agreed 
as  to  the  rectitude  of  the  decision  in  Bagot  v.  Oughton.  The  na- 
ture of  the  thing  spoke  intent  as  forcibly  as  the  most  direct  words 
could  have  done.     It  was  demonstration. 

11.  In  a  later  case  under  Sergeant  Maynard's  will,  the  power 
was  to  lease  all  or  any  of  the  tenements  devised,  for  one,  two, 
three  or  four'lives  or  years  so  determinable,  in  possession  or  rever- 
sion, and  under  the  new  rents  now  reserved  ;  and  the  like  agree- 
ment, as  in  the  leases  now  in  being,  and  by  the  present  tenants 
thereof  respectively  to  be  performed  :  and  there  was  a  power  of 
leasing  for  seven  years  at  rack  rent.  An  estate  had  been  out  upon 
a  lease  for  lives  when  the  Serjeant  purchased  it,  but  the  lives 
dropped  before  lie  made  his  will,  and  it  was  in  his  possession  at 
his  death  ;  and  the  Master  of  the  Rolls,  and  afterwards  Lord 
Chancellor  King,  assisted  by  Raymond,  C.  J.,  Denton,  J.,  and 
Comyn,  Baron,  held  that  a  lease  granted  of  this  property  under 
the  power  was  bad,  relying  upon  the  cases  before  cited,  (w) 

12.  In  a  modern  case  on  this  subject  a  similar  decision  was  made. 
A  man  by  his  will  devised  his  estate  in  strict  settlement,  and  gave  a 
power  to  lease  all.  or  any  of  the  said  manors,  messuages, 

lands,  tenements  and  hereditaments,  for  *lives  or  years,  [  '^323  ] 
so  as  the  usual  rods  were  reserved.  There  were  some 
tithes  which  were  never  leased  before  the  making  of  the  will,  but 
some  parts  of  the  estate  had  been  usually  demised  at  rents ;  and 
the  Court  considered  Lord  Mansfield's  observations  on  Bagot  and 
Oughton  to  apply  most  pointedly  to  the  case  before  them,  as  the 
tithes  never  had  been  let,  but  had  always  been  occupied  by  the 
possessor  of  the  estate  ;  and  they  accordingly  determined  that  the 
power  did  not  embrace  the  tithes. (o) 

13.  In  the  last  case(/>)  on  this  point  there  were  two  descriptions 
of  land,  some  which  had  been  demised  previously  to  the  will,  and 

(rt)  Foot  V.  Marriot,  3  Vin.  Abr.  420,  pi.  9;  which  case,  although  a  very  consider- 
able authority  on  this  head,  has  hitherto  unaccountably  escaped  notice, 
(o)  Pomcry  v.  Partington,  3  Term  Rep.  GG5. 
(p)  Doe  V.  Rendle,  3  Mau.  k  Selw.  99. 

Vol.  II.  25 


290  SUGDEN   ON   PO-R'-ERS. 

some  which  had  not  ;  and  tho  ])Owerwas  to  lease  all  or  any  part 
of  the  jiroperty  for  not  exceeding-  three  lives,  &c.,  so  as  there  was 
reserved  the  accustomed  yearly  rent  or  rents,  heriot  and  hcriots, 
and  otlier  things  usually  paid.  Tlic  power  was  to  the  trustees 
during  minorities,  and  then  to  the  tenant  for  life,  &c.  The  Court 
treated  it  as  a  question  of  intention.  They  observed,  that  in 
Bagot  V.  Oughton  the  nature  of  the  jn-operty  proved  the  intention, 
p,nd  in  this  case  they  thought  the  intention  as  plainly  proved  by 
the  character  of  some  of  the  parties  to  whom  the  power  was  given. 
It  was  to  the  trustees  that  the  power  was  in  the  first  instance  given, 
and  llicy  tliought  it  never  could  have  been  intended  that  they  who 
might  liave  liad  an  interest  for  a  day  only,  and  who  were  not  intend- 
ed to  have  any  beueiicial  interest  for  themselves,  should  be  able  to 
alter  tlic  nature  of  the  proi)erty,  and  prevent  the  tenant  for  life 
from  occupying  what  the  testator  had  always  reserved  for  his  own 
occupation, 

14.  But  in  all  these  cases  the  intention  of  the  parties  is  to  gov- 
ern ;  and  there  are  several  instances  in  which  parts  of  the  estate 
never  leased  have,  in  favour  of  the  supposed  intention,  been  con- 
sidered to  be  within  powers  requiring  the  ancient  or  usual,  or 
present  rents,  to  be  reserved. 

*15.  The  first  of  these  is  Curaberford's  case,(^) 
[  *o24  ]  wlicre,  under  a  ])ower  to  make  leases  of  tho  premises, 
or  any  part  thereof,  "  so  that  as  much  rent,  or  more, 
was  reserved  upon  each  lease  as  was  reserved  in  respect  of  it 
within  the  two  years  immediately  preceding,"  it  was  resolved, 
that  lands  which  had  not  been  leased  within  the  two  years  at  any 
rent,  might  be  leased  by  the  donee  at  any  rent  he  pleased,  because 
it  appeared  by  the  generality  of  the  words  that  it  was  intended 
he  should  have  power  to  lease  all  the  land.  The  Court,  therefore, 
considered  the  restrictive  clause  as  applicable  only  to  such  lands 
as  had  been  demised  two  years  before. 

16.  Upon  the  authority  of  this  case,  as  it  should  seem,  the  case 
of  Waker,  or  Walker  and  WakeraaQ,  was  decided. (r)  A  power 
was  given  in  a  settlement  of  an  estate  to  demise  the  premises, 
(which  consisted  of  land,  a  rectory,  <tc.)  so  as  5^.  an  acre  were 

(5)  2Ro.  Abr.  262,  pi.  15. 

(r)  1  Frcem.  413;  2  Lev.  150;  1  Ventr.  291;  3  Keb.  544.  547.  586.  589.  619;  and 
Bee  Campion  v.  Thorpe,  Clayt.  99. 


WHAT   PART   DEMISED   WITHOUT   RENT.  291 

reserved  for  every  acre  of  tlie  laud  demised.  The  rectory  con- 
sisted of  tithes  only,  and  no  globe  ;  and  it  was  adjudged,  that  the 
])Owcr  authorized  a  demise  of  the  land  at  5s.  per  acre,  and  of  what 
did  not  consist  of  acres,  as  the  rectory,  without  rent.  And,  upon 
the  same  principle,  Lord  C.  J.  Holt  delivered  an  extra-judicial 
opinion,  that  under  a  power  to  lease  an  estate  comprising  a  manor, 
so  as  the  leases  were  not  made  of  the  demesne  lands,  and  so  as 
the  ancient  rent  were  reserved,  the  rents  and  services  might  be 
demised  without  rent,  because  it  appeared  to  be  the  intent  of  the 
settlement  that  part  of  the  manor  might  be  demised ;  and,  as  the 
demesne  lands  were  not  comprised  in  the  power,  then  the  rents 
and  services  must  be  ;  for  the  whole  of  the  manor  consists  in  de- 
mesnes, rents  and  services ;  and  he  said,  if  a  man  hath  a  power 
reserved  to  him  of  making  leases  of  tioo  things,  and  a  qualijica- 
tion  is  annexed  to  the  poioer^  ivhidi  cannot  extend  to  gne  of  these 
things,  he  may  rnake  a  lease  of  *that  thing  loithout  any 
regard  to  the  qualification.(T)  And  he  relied  upon  [  *325  ] 
Cumberford's  and  Waker's  cases  as  authorities  for  these 
positions ;  but  Turton  and  Eyre,  J,  thought,  that  as  there  were 
other  lands  mentioned  in  the  power,  they  satisfied  the  words  of 

it.  (0 

17.  In  the  case  of  Goodtitlc  v.  Funucan(^)  the  power  in  a  set- 
tlement of  manors,  fishery,  &c.  was  to  demise  all  or  any  of  the 
manors,  fisheries,(M)  messuages,  lands,  tenements,  and  heredita- 
ments thereinbefore  mentioned,  so  as  there  were  reserved  so  7nuch 
rent,  or  more,  than  ivas  then  paid  for  the  same.  The  manors,  or 
manorial  rights,  had  not  been  let  before.  Th^  fishery  had  been 
let  before,  but  was  not  at  the  time  of  the  settlement ;  since  that 
time  it  had  been  again  let  at  15s.  a  year.     A  lease  was  made  un- 

(s)  Winter  v.  Lovedny,  Com.  37;  1  Frcem.  507;  1  Lord  Raym.  267;  2  Salk.  537; 
Cartli.  427;  and  see  Campion  v.  Thorpe,  Clayt.  99;  Campbell  v.  Leach,  Anibl.  740. 

(/)  Dougl.  OOu.  See  1  Burr.  121. 

(»)  See  3  Term  Rep.  671,  n. 

(I)  Lord  C.  J.  de  Grey  quoted  this  rule  in  Campbell  v.  Leach.  The  passage  in 
Ambler,  p.  748,  should  be  read  thus  :  Where  thei-e  is  a  power  of  leasing  (with  a  des- 
cription) applicable  to  some  parts  of  the  estates,  and  not  to  all  of  them,  those  to 
which  it  is  (not)  applicable,  may  be  leased  without  such  description.  Vide  supra, 
page  124,  n.  It  now  appears  from  Mr.  Blunt's  edition,  that  in  Serjeant  Hill's  MSS. 
the  passage  as  above  amended  is  correct.  Where  there  is  a  power  of  leasing,  and  a 
rcilriclion,  applicible  to  some  part  of  the  estates,  and  not  to  all  of  them,  those  to 
which  it  is  inapplicable  may  be  Icjised  without  such  restrictions. 


202  SUGDEN   ON   POWERS. 

Jer  the  power  of  the  manors  and  fishery,  and  some  lands,  reserv- 
ing tliG  right  of  shooting  and  fisliiug,  at  a  rent  exceeding  what 
they  had  ever  produced  before,  al)out  30/.;  and  the  Court  held  the 
lease  to  be  valid.  Lord  Mansfield,  in  delivering  the  judgment  of 
the  Court,  said  "  Uiat  the  power  was  express  to  demises,  the  ma- 
nors and  fisheries.  They  were  particularly  mentioned  in  the  set- 
tlement, and  the  power  went  to  the  whole.  They  paid  under  this 
lease  as  great  a  yearly  rent  as  at  the  time  of  the  settlement,  for 
they  paid  nothing  then.  The  words,  therefore,  were  complied 
with,  and  the  olyection  *could  only  stand  upon  the  in- 
[  *32G  ]  tent.  But  the  court  thought  no  such  intent  appeared. 
The  manors  were  nominal ;  of  no  value  ;  no  olycct  of 
yearly  income.  The  fishery  only  worth  15s.  a  year.  They  were 
convenient  to  the  lessee  living  on  the  land,  and  of  no  use  to  the 
remaindcr-nian.  The  right  of  siiooting  and  fishing  was  reserved 
to  him.  For  his  own  part,  he  thought  the  intent  was  to  give  leave 
to  demise  all,  reserving  as  much  rent  in  the  whole  as  had  been 
paid  before,  and  in  fact,  30/.  more  had  been  reserved." (re) 

18.  These  cases  must  not  be  dismissed  without  observation. 
The  decision  in  Cumberford's  case  has  been  referred  to  the  ita 
quod,  or  so  that,,  in  the  power,(y)  and  Waker's  case  was  distin- 
guished by  the  Court  from  Mountjoy's,  on  the  ground  that  there 
the  proviso  was  disabling-;  that  no  lease  should  be  made  but  with 
ancient  rent,  whereas  in  the  case  before  them  the  power  was  ena- 
bling', and  the  latter  clause  restrictive. (s)  But  these  subtle- 
ties(I)  are  happily  got  rid  of.  (a)  The  intention  of  the  parties, 
to  be  fairly  collected  from  the  whole  instrument,  is  the -only  guide 
to  the  true  construction  of  the  power.  Upon  this  broad  ground 
it  was  that  the  case  of  Goodtitle  and  Funucan  was  decided.  If, 
then,  in  these  cases  we  are  to  advert  to  intention,  the  value  of  the 
property  must  have  considerable  weight :  for  it  is  decided,  that  if 

(x)  Ami  sec  3  Term  Rep.  677. 
(2/)  See  Fort.  332. 
(z)  See  3  Keb.  597. 

(0)  See  3  Term  Rep.  677. 

(1)  In  treating  a  tlistinction  between  a  disabling  and  an  enabling  power  as  a  sub- 
tlety, I  alluile  only  to  those  cases  where  it  turns  merely  on  the  form  of  the  words  cre- 
ating the  power,  for  certainly  there  is  a  wide  difference  between  a  power  ilianbling  a 
tenant  in  fee  from  making  any  lease  but  for  a  certain  time,  and  a  power  enabling  a 
tenant  for  life,  to  lease  for  the  same  period.     Vide  infra. 


WHEN    MIXES    MAY    BE    DEMISED.  293 

the  lands,  tithes,  etc.  to  which  the  restriction  does  not  apply  are 
within  the  power,  they  may  be  leased  for  the  term  prescribed 
without  rent.     The  mischiveous  consequences  of  this  construction 
are  evident.     The  intention  of  a  settlement  may  be  en- 
tirely *dcfeated  by  it.     The  donee  may  lease  lands,  not  [  *327  ] 
letten  before,  without  rent,  taking  a  large  fine  at  the 
expense  of  the  remainder-man,  whereas,  in  regard  to  those  before 
letten,  he  is  compellable  to  reserve  the  ancient  rent.     How  in- 
congruous and  absurd  is  this  rule,  and  how  little  calculated  to 
eifectuate  the  intention  of  the  parties  !     Waker's  case  appears  to 
have  been  decided  solely  on  the  authority  of  Cumljcrford's  case, 
and  Lord  Chief  Justice  Hale  said  if  it  had  been  res  Integra,  per- 
haps he  should  have  been  of  another  opinion, (&)  and  Mr.  Justice 
Bnrclay  seems  to  have  entertained  the  same  opinion  ;(c)  and  in 
the  great  case  of  Foot  v.  Marriot,  Lord  Chancellor  King  adopted 
Hale's  view  of  Cumberford's  case,  and  added,  that  if  the  case  were 
law  it  should   not  be  carried  one  step  farther. (fi?)     In  all  the 
modern  cases,  the  Judges,  without  expressly  overruling   Cumber- 
ford's  case,  have  clearly  evaded  the  spirit  of  the  decision.    If  the 
cases  of  Bagot  and  Oughton,  Foot  and  Marriot,  and  Pomery  and 
Partington,  are  well  decided,  it  is  still  open  to  contend  that  the 
property  to  which  the  restrictive  clause  cannot  apply,  shall,  if 
valuable,  be  rather  held  not  to  be  within  the  power,  than  that 
the  first  tenant  for  life  shall  be  authorized,  contrary  to  the  inten- 
tion of  the  donor,  to  decrease  the  rental  of  the  estate  for  his  own 
particular  emolument.     The  rule  laid  down  by  Holt,  that  "  where 
a  man  hatli  power  reserved  to  him  of  making  leases  of  two  things, 
and  a  qualification  is  annexed  to  the  power,  whicli  cannot  extend 
to  one  of  these,  he  may  make  a  lease  of  that  thing  without  any 
regard  to  the  qualification,"  may  be  a  sound  rule  ;  but  the  ques- 
tion in  these  cases  is,  whether  the  qualification  does  not  form  a 
part  of  the  sentence,  and  virtually  exclude  that  subject  to  which, 
it  is  admitted,  it  cannot   extend.     There  are,  however,  cases  to 
wliich  the  rule  ought  to  be  applied  ;  as,  if  in  a  power  to  lease 
estates,  including  mines  opened  and  unopened,  a  clear 
intention  *appears  to   embrace   all  the  mines,  but  a  [  "328  j 
«      * 

(6)  Sec  2  Lev.  151. 
(c)  3  Keb.  596. 
{d)  3  Vin.  Abr.  429,  pi.  9. 
25* 


294  SUGDEN   ON   POWERS. 

clause  is  added,  that  no  lessee  shall  be  made  dispunishable 
of  waste,  there,  to  eflcctuate  the  general  intention  of  the  power, 
the  latter  clause  should  not  be  deemed  applicable  to  the  un- 
opened mines  :(e)  .So  if  a  similar  clause  be  inserted  in  a  power 
to  grant  leases  at  rack-rent,  and  building  leases,  it  ought  to  be 
construed  to  extend  to  the  leases  at  rack-rent  only,  because  no 
improvements  by  building  could  be  made,  unless  old  buildings 
could  be  pulled  down,  trees  felled,  tfcc.  Indeed,  it  even  seems 
that  such  a  clause  in  a  power  to  grant  building-leases  only  would 
not  restrain  the  liljcrty  of  pulling  down  the  old  buildings  in  order 
to  erect  new  oncs.(/) 

19.  Where  leases  are  granted  under  powers  to  lease  lands 
usually  demised,  it  must  be  shown,  by  old  leases  or  other  satisfac- 
tory evidence,  that  the  lands  have  usually  been  demised,  or  tlley 
cannot  be  supported. (.g-) 

20.  In  the  cases  of  Campbell  v.  Leach,(/«)  it  was  determined 
that  under  a  power  to  lease,  the  "  messuages,  lands,  tenements,  and 

1      hereditaments,'^  in  the  deed,  (except  the  capital  messuage  and 

I      warren) at  the  best  rent,  but  no  authority  was  to  be  given  to  commit 

I     waste,  opened  mines  might  be  leased,  as  they  were  in  lease  at  the 

time  of  the  settlement,  and  twelve  years  then  to  come  of  the  term, 

I      and  must  be  understood  to  have  been  settled  for  the  benefit  of  all 

claiming  under  it,  and  the  words  were  sufficient  to  carry  the  mines  ; 

but  the  master  of  the  Rolls  held  that  the  unopened  mines  could  not 

be  demised,  as  that  would  be  an  authority  to  commit  Avaste  :  but 

the  Judges  before  whom  the  appeal  was  heard  appear  to  have 

avoided  deciding  the  point. 

21.  Under  the  usual  power  to  let  the  estates,  hereditaments,  and 

premises  given  to  the  tenant  for  life,  he  cannot  demise  a 
[  *329  ]  part  of  the  estate  with  a  right  of  sporting  over  *the 

rest.  And  it  was  said  the  demise  must  be  of  the  whole, 
which  covers  the  part  demised  ;  an  easement  cannot  be  granted 
by  itself  out  of  any  separate  part ;  that  would  be  subjecting  the 
land  to  a  servitude. (t) 

(e)  See  and  consider  Campbell  v.  Leach,  Ambl.  740;  and  keep  in  remembrance 
that  it  is  not  waste  to  work  open  mines;  Co.  Litt.  54  p.        ' 
(/)  Vide  infra. 

(g)  See  Earl  of  Cardigan  v.  Montague,  App.  No.  13  (6). 
(/i)  Ambl.  740. 
(i)  Dayrell  v.  Hoare,  12  Add.  &  EU.  356. 


PROPERTY  LEASED,  SHOULD  BE  PROPERLY  DESCRIDED. .   295 

22.  The  usual  power  of  leasing  for  lives  authorizes  a  lease 
during  co-existing  lives  only.(/!;)  And  where  a  power  is  limited 
to  lease  for  any  given  number  of  lives  such  parts  of  the  estates 
as  arc  demised  for  any  such  time,  it  does  not  include  lands  which 
were  then  demised  for  lives,  not  concurrently,  l)ut  successively, 
and  by  way  of  settlement.  (/) 

23.  In  the  case  of  Winter  v.  Loveday,  it  was  determined  by 
Holt,  Chief  Justice,  Turton  and  Eyre,  against  Rokeby,  that  an 
exception  in  a  power  of  leasing  of  the  demesnes  of  a  manor, 
included  the  copyholds  of  the  manor.  Rokeby  thought  that  the 
exception  extended  only  to  lands  in  the  occupation  of  the  donor. 
He,  however,  held,  that  if  the  demesne  lands  had  riot  been  except- 
ed by  express  words,  yet  the  power  of  leasing  would  not  have 
extended  to  them,  for  if  it  did,  it  would  destroy  the  tenure,  because 
copyhold  lands  once  leased,  arc  forever  enfranchised,  and  there- 
fore, it  shall  never  be  presumed  that  the  tenure  was  intended  to 
be  destroyed,  without  express  words  of  the  parties  for  that  pur- 
pose. (?>^)  This  is  an  important  general  rule  of  construction  ap- 
plicable to  every  power. 

24.  The  property  demised  ought  of  course  to  be  so  described 
as  to  throw  upon  a  remainder-man  no  difficulty  in  ascertaining 
what  it  embraces,  (/i) 

(fc)  Vide  infra,  sect.  3. 

(/)  Doe  V.  Halcombe,  7  Term  Rep.  713  ;  Right  v.  Thomas,  3  Burr.  1441  ,  I 
Blackst.  440. 

(?«)  Cartb.  428,  et  sup. 
(ft)  SeeGilb.  Rep.  61,62. 


296  SUGDEN   ON   POWERS. 

[  '330  ]  'SECTION  III. 

OP   THE   TEUM    WHICH    MAY    BE    (UlANTED. 

!•  )  Where  a  chattel  interest  depending  i    8.  Whether  such  a  power  to  the  lessee  is 
4.  5      upon  lives  may  be  granted.  I  valid. 

2.  Where  only  a  lease  for  years  or  a  lease  ,  14.  What  amounts  to  a  power  of  leasing 

fur  lives  may  be  granted.  for  :tn  unlimited  term. 

3.  Wliere  the  lease  neeiTnot  be  dependent  !  18.  For  what  lives  a  lease  may  be  made. 

upon  lives.  20.  }  Lease  for  lives  or  for  years,  where 

J;  I  A  less  term  may  be  granted.  ^L  J^^vahd.  ^^^  ^_^^^  ^^^^  ^^^^^  ^^^^^ 

7.  A  power  may  be  reserved  to  the  lessor  to  lease  for  three  lives, 

to  detern)ine  the  lease. 


Some  of  the  cases  on  this  head  have  been  unavoidably  treated 
of  in  a  former  part  of  the  work,  (a)  We  may  now  inquire  general- 
ly, 1,  The  term  which  may  be  granted  ;  2.  For  what  lives  the 
estate  may  be  granted  under  powers  to  lease  for  lives  ;  3.  In 
what  cases  leases  in  possession  only  can  be  granted  ;  4.  In  what 
instances  leases  in  reversion  maybe  granted  ;  5.  Whether  con- 
current interests  can  be  granted  under  the  usual  power  of  leasing. 

1.  We  have  already  seen  that  a  power  to  lease  for  lives  will 
not  authorize  a  lease  for  years  determinable  upon  lives,  but  that 
under  a  general  power  to  lease,  with  a  proviso  that  the  leases 
should  not  exceed  three  lives  or  twenty-one  years,  a  lease  for  any 
term  of  years  determinable  upon  lives  would  be  good ;  for  a  lease 
for  ninety-nine  years  determinable  on  three  lives  does  not  exceed 
•three  lives,  although  in  truth  it  is  not  a  lease  for  lives,  (ja) 

2.  So  we  have  seen  that  a  power  to  lease  for  any  number  of 
years  not  exceeding  twenty-one  years,  or  for  the  life  or  lives  of 

any  one,  two,  or  three  person  or  persons,  so  as  no 
[  *331  ]  'greater  estate  than  for  three  lives  be  at  any  one  time 

in  being,  authorizes  a  lease  for  years  or  a  lease  for 
lives,  but  not  a  lease  for  years  determinable  on  lives.(^)     The 

(o)  Vide  supra,  vol.  1,  p.  401. 

(p)  Vide  supra,  vol.  1,  p.  491;  Whitlock's  case,  8  Rep.  69  b.;  Berry  v.  White, 
Bridg.  by  Ban.  100. 
(?)  Supra,  vol.  1,  p.  493^  Roe  v.  Prideaux,  10  East,  158. 


TERM   WHICH    MAY   BE   GRANTED.  297 

latter  clause  was  held  not  to  enlarge  the  first  power,  which  was 
only  to  lease  for  years,  not  exceeding  twenty-one  in  numl)er. 

3.  And  a  power  to  lease  if  in  possession  for  one,  two,  or  three 
lives,  or  for  the  term  of  thirty  years,  or  for  any  other  number  or 
term  of  years  determinable  upon  one,  two,  or  three  lives,  or  in 
reversion  for  one  or  two  lives,  or  for  the  term  of  thirty  years,  or 
for  any  other  number  or  term  of  years  determinable  on  one  or  two 
lives,  was  held  to  warrant  a  lease  for  thirty  years  absolutely. (r) 

4.  Again,  a  power  to  demise  for  three  lives,  or  twenty-one 
years  or  under,  or  for  any  term  of  years,  upon  one,  two,  or  three 
lives,  or  as  tenant  in  tail  in  possession  might  do,  was  held  to 
warrant  a  lease  for  ninety-nine  years  determinable  upon  three 
lives.(s) 

").  Where  a  power  is  to  lease  for  any  term  or  number  of  years  \ 
iiot  exceeding  a  given  number,  a  lease  may  of  course  be  made  for  '' 
any  term  within  the  limit.  (^) 

6.  So  even  if  the  power  be  to  lease  for  any  given  term,  as  for 
twenty  years,  without  saying  for  any  term  not  exceeding  the 
number  of  years,  yet  a  lease  may  be  made  for  a  less  term.(«) 

7,  And  where  a  power  authorizes  leases  for  any  term  within  a 
given  limit,  or  for  any  term  of  years  not  exceeding  twenty-one,  a 
lease  may  be  made  for  the  term  with  a  proviso  that  upon  the 
tender  by  the  lessor,  the  donee  of  the  power  of  Is.  or  the  like, 
the  lease  shall  be  void  ;(a;)  or  in  other  words,  a  lease 

may  be  made  for  a  term  certain,  with  a  *proviso  deter-  [  '-)32  ] 
mining  it  in  a  given  event,  at  the  option  of  the  lessor ; 
but  it  would  be  otherwise  if  the  power,  as  is  sometimes  the  case, 
required  the  lease  to  be  for  a  term  absolute  ;  that  is  fixed  and  not 
determinable.  In  Cardigan  v.  Montagu,  where  the  clause  of 
revocation  was  held  good,  the  term  was  to  be  for  any  number  of 
years  absolute,  not  exceeding  thirty-one  years,  or  for  any  number 
of  years  deto-minable  on  lives ;  so  that  there  the  expression  abso- 
lute was  raised  in  opposition  to  a  term  depending  not  simply  upon 
•  effluxion  of  time. 

(r)  Supra,  vol.  1,  p.  49";  Winter  v.  Lovdhiy,  1  Cora.  37. 
(«)  Supra,  vol.  1,  p.  4*i8;  Lutwich  v.  Piggot,  3  Mod.  268. 
(0  Supra,  vol.  1,  p.  406. 

(u)  Tsl)erwood  v.  Oldknow,  3  Mau.  &  Sclw.  882.  S.  C.  MS.  See  Harris  v.  Bes- 
sie, 1  Keb.  347;  Bri<lg.  by  Ban.  603. 

(x)  Earl  of  Cardigan  v,  Montagu,  App.  No.  13. 


298  SUGDEN  ON   POWERS. 

8.  Whether  a  like  power  can  be  given  to  tlie  lessee  where  the 
lease  is  required  to  be  I'or  a  term  al)solute,  in  the  proi)er  sense  of 
that  term,  has  been  a  subject  upon  which  judicial  minds  have 
diftcred. 

0.  In  Jones  v.  Verney(//)  the  power  was  to  lease  for  any  term 
or  numljer  of  years  not  exceeding  sixty-one  years,  so  as  there 
should  be  reserved,  to  continue  ])ayable  during  the  terra,  the 
rents,  <fec.  and  so  as  there  was  contained  a  condition  of  re-entry 
for  non-payment  of  rent  and  the  usual  and  reasonable  covenants. 
A  lease  was  granted  for  sixty-one  years,  and  a  power  was  given 
to  the  lessee,  his  executors,  &c.  at  the  end  of  forty  years  to  deter- 
mine the  lease  upon  giving  twelve  months'  notice  to  the  lessor  or 
the  person  for  the  time  being  entitled.  The  lease  was  held  void 
because  it  was  not  properly  a  building  lease,  as  required  l)y  tlie 
power.  But  the  L.  C.  Justice  in  delivering  the  opinion  of  the 
Court,  after  two  arguments,  proceeded  to  show  that  the  lease  was 
not  a  Ijuilding  lease.  The  proviso  likewise,  he  added,  that  the 
lessee  should  be  at  liberty  to  quit  the  premises  at  the  expiration 
of  forty  years,  affords  another  very  strong  argument  to  this  pur- 
pose. For  though  he  did  not  think  it  made  the  lease  itself  void, 
yet  it  showed  plainly  that  this  was  not  intended  to  be  a  l)uilding 
lease  ;  for  if  the  lessee  had  been  to  rebuild  he  would  have  been 
desirous  to  keep  the  premises  as  long  as  he  could,  and 
[  *333  ]  would  never  have  desired  a  liberty  *of  quitting  the 
premises  before  the  end  of  the  term.  But  this  liberty 
could  be  inserted  with  no  other  view  but  lest  the  premises  should 
become  so  ruinous  before  the  end  of  the  term  that  the  lessee 
should  not  think  it  worth  his  while  to  keep  the  premises  in  repair 
at  a  great  expense,  and  pay  at  tlie  same  time  the  best  improved 
rent  for  them. 

10.  In  Lowe  v.  Swift(z)  the  power  was  to  lease  for  one,  two, 
or  three  lives,  or  for  any  number  of  years,  determinable  upon  such 
lives,  not  exceeding  tliirty-one  years,  to  commence  in  possession, 
and  not  in  reversion,  at  the  best  rent,  with  a  counterpart,  and  a 
clause  of  distress  and  re-entry,  and  all  other  clauses  and  cove- 
nants usual  between  landlord  and  tenant.  It  was  not  necessary 
to  decide  the  point ;  but  Lord  Manners  expressed  his  opinion 

(1/)  Willcs,  160. 

(r)  2  Call  &  BeaL  53C. 


TERM   WHICH   MAY   BE   GRANTED.  299 

that  a  clause  of  surrender  could  not  have  been  introduced  in  a 
lease  under  the  power.  Consider,  he  said,  what  would  be  the 
effect  of  such  a  clause :  the  tenant  would  be  at  liberty  to  hold  the 
lands  so  long  as  they  were  profitable  to  him ;  but  if  the  value  of 
the  lands  should  be  depreciated  by  any  circumstance,  bad  hus- 
l)andry,  bad  times,  or  otherwise,  the  tenant  would  have  a  right  to 
throw  them  up,  to  the  prejudice  of  the  i-cmainder-mau  and  the 
inheritance.  He  thought  that  to  introduce  such  a  clause  would 
];c  a  fraud  on  the  power. (I) 

11.  In  Jack  V.  Creed, (a)  by  a  marriage  settlement  an  estate 
was  limited  in  strict  settlement,  "  with  the  usual  leasing  power 
for  three  lives  or  thirty-one  years,  in  possession,  and  not  in  rever- 
sion, and  without  fine  or  fines,  or  other  benefit,  for  granting  such 
lease  or  leases :"  A  lease  for  three  lives  was  granted  under  the 
power,  with  a  power  to  the  lessee  to  surrender  on  any 
1st  day  of  May,  after  the  *expiration  of  the  first  five  [  *334  } 
years  of  the  term.  The  Court  of  King's  Bench  in  Ire- 
land held  the  lease  to  be  void.  The  Court  said,  they  had  delibe- 
rated much  upon  it,  and  tlie  result  was  that  they  thought  that  this 
was  an  undue  execution  of  the  power,  and  that  the  lease  was  void. 
The  power  given  was  the  usual  leasing  pcwer  for  three  lives  or 
thirty-one  years,  that  is,  for  any  term  of  years  or  lives  not  ex- 
ceeding three  lives  or  thirty-one  years,  it  not  being  necessary  that 
the  lease  should  be  for  the  full  term  mentioned  in  the  power ; 
Ishorwood  v.  Oldknow,  3  Mau.  &  Selw.  382.  But  a  lease  for  a 
life  or  lives  absolutely,  or  for  a  term  of  years  absolutely,  was  a 
very  different  lease  from  one  for  a  life  or  years,  with  a  clause  em- 
powering the  tenant  l)y  a  surrender  to  determine  the  lease.  In 
the  former  case  l)oth  parties  were  bound  during  the  term  ;  neither 
party  could  determine  the  lease  without  the  assent  of  the  other  : 
and  the  quantum  of  the  rent  might  be,  and  probably  had  been, 
fixed  with  a  view  to  this  circumstance,  and  the  consequences  of 
it.  Though  a  long  lease  might  in  general  be  more  beneficial  to 
the  tenant  than  a  short  one,  yet  the  circumstance  of  being  abso- 
lutely bound  during  the  term  was  one  that  a  prudent  man  would 

(a)  2  Huds.  &  Bro.  128. 

(I)  In  the  argument  it  was  said,  Lord  Redesdale  treats  such  a  clause  as  a  fraud  on 
the  landlord.  This  is  probably  an  error,  and  was  intended  to  refer  to  what  Lord  R. 
said  in  1  Scho.  &  Lef.  G4. 


300  SUGDEN   ON  POWERS. 

advert  to ;  and  there  could  be  no  doubt  that  a  tenant  would  have 
preferred  having  it  in  liis  ()j)tion  to  surrender  his  lease  to  being 
absolutely  bound  during-  the  term.  A  lease  for  a  term  absolute, 
therefore,  appeai'cd  to  them  to  be  very  different  from  a  term  not 
absolute  against  the  tenant,  but  absolute  against  the  landlord. 
The  prejudice,  however,  that  might  be  sustained  l)y  the  remainder- 
man, by  reason  of  injury  to  the  land,  was  the  strong  objection  to 
such  a  clause.  The  tenant  might  by  a  course  of  Imsbandry  adapt- 
ed to  that  purpose  exhaust  the  land,  and  surrender  his  lease  when 
the  land  was  so  exhausted.  It  was  true  the  clause  contained  a 
proviso  that  the  ])remises  should  be  surrendered  in  good  repair, 
order  and  condition  ;  but  a  question  might  have  been  raised  whe- 
ther this  proviso  meant  that  the  land  should  have  been 
[  *33.3  ]  properly  tilled,  and  *not  deteriorated  by  taking  succes- 
sive crops  and  an  exhausting  course  of  husbandry  ;  and 
the  landlord  was  not  to  be  exposed  to  the  trouble,  expense  and 
risk  of  trying  such  a  question.  Neither  was  it  a  sufficient  answer 
that  an  action,  in  the  nature  of  an  action  of  waste,  might  be 
brought  against  the  tenant.  The  remainder-man  was  not  to  be 
reduced  to  the  necessity  of  bringing  an  action,  nor  to  be  exposed 
to  the  uncertainty  of  obtaining  the  fruits  of  any  judgment  he 
might  recover.  It  could. not  be  held  that  the  power  was  well 
executed  by  the  lease  for  three  lives,  and  that  the  clause  of  sur- 
render was  a  distinct  and  independent  clause,  which  might  be  re- 
jected, leaving  the  demise  to  stand  without  the  clause  of  surrender, 
(According  to  Adams  v.  Adams,  CoAvp.  651,  and  that  class  of 
cases,)  because  the  clause  was  incorporated  with  the  demise,  and 
must  be  considered  as  part  of  the  consideration  for  the  rent  cove- 
nanted to  be  paid.  For  these  reasons  they  thought  the  clause  of 
surrender  vitiated  the  lease,  and  that  the  lease  being  void  the 
plaintiff  was  entitled  to  judgment. 

12.  And  the  Judges  of  the  Common  Pleas  in  Ireland  came  to 
the  same  decision  in  another  case  ;  but  there  was  a  great  diversity 
of  opinion  amongst  the  Judges  there  upon  the  point.  In  the  case 
of  Lord  Muskerry  v.  Chinnery,(I)  where  under  a  very  general 
power  to  lease  for  any  time  or  term  of  years,  or  lives,  and  with  or 
without  covenants  for  renewal,  leases  had  been  granted  for  909 

(I)  Lloy.  &  Goo.  t.  Sugd.  185.  Appendix,  No.  18,  for  the  opinion  of  the  Lord 
Chief  Baron.  * 


TERM   WHICH   MAY   BE   GRANTED.  301 

years,  for  large  fines,  with  a  clause  of  surrender  :  The  lease  had 
been  certified  by  the  Common  Pleas  in  Ireland  to  be  void.  The 
case  was  afterwards  heard  in  February  1835,  before  tlie  Lord 
Chancellor,  assisted  by  the  Lord  Chief  Baron,  and  the  Lord  Chief 
Justice  of  the  Common  Pleas.  It  became,  in  the  view  which  the 
Chancellor  took,  unnecessary  to  decide  the  point ;  but  he  deliver- 
ed it  as  his  opinion  that  the  clause  of  surrender  did  not 
'vitiate  the  lease.  In  an  abstract  view,  and  with  refer-  [  *336  ] 
once  to  the  terms  before  him,  he  thought  the  objection 
entitled  to  no  weight  whatever.  It  was  understood  that  the  Lord 
Chief  Justice  was  of  the  same  opinion,  and  the  Lord  Chief  Baron, 
who  was  of  the  same  ojjinion,  wrote  out  the  grounds  upon  which 
he  came  to  that  conclusion. (6)  He  said,  that  in  a  lease  of  so 
long  a  term,  and  for  which  so  large  a  fine  had  been  paid,  such  a 
clause  could  have  little  effect.  If  the  lessee  were  to  surrender, 
he  would  lose  his  large  fine.  It  was  objected,  that  h§  might  cx- 
liaust  the  land,  and  then  surrender  his  lease.  Upon  what  ground 
could  such  a  supposition  rest  ?  The  objections  to  the'clause  were 
these  :  1.  There  is  a  want  of  mutuality,  the  tenant  having  a  right 
tu  surrender,  and  the  lessor  having  no  right  to  revoke.  The 
converse  of  tliis  existed  in  Cardigan  v.  Montagu.  To  this,  he 
thought,  it  was  satisfactorily  answered,  tliat  there  was  no  such 
)jriuciple  of  Uiw  as  that  in  every  contract  there  nmst  be  that  mutu- 
ality whicli  is  contended  for  here,  and  that  in  a  lease  for  every 
advantage  given  to  the  lessee  there  must  be  a  correlative  advan- 
tage given  to  the  lessor.  In  Cardigan  and  Montagu  the  landlord 
had  a  right  to  revoke.  It  is  said  that  the  landlord  is  fast,  whilst 
the  tenant  is  loose.  Now,  in  cases  under  the  statute  of  frauds 
ti'.at  often  exists,  and  it  is  no  objection  either  to  a  bill  for  a  spe- 
cific execution  of  a  contract,  or  to  an  action  at  law  upon  a  con- 
ti-act  within  the  statute  of  frauds,  that  the  contract  has  been  only 
signed  by  the  defendant,  and  not  by  the  plaintiff,  and  therefore 
not  binding  on  the  hitter.  So  in  cases  not  under  the  statute  of 
frauds,  it  is  no  objection  that  the  landlord  is  bound,  and  the  ten- 
ant is  loose  :  and  in  illustration  of  this,  he  cited  Dann  v.  Spurrier. 
7  Vcs.  jun.,  Price  v.  Dyer,  17  Ves.,  and  WeV)b  v.  Dixon,  9  East, 
lo.     Next  it  is  objected,  as  a  practical  inconvenience,  that  if  by 

(6)  Appendix,  No.  18. 

Vol.  II.*  2G 


r^^ 


302  SUGDEN   ON   POWERS. 

the  fall  of  prices,  or  other  cause,  the  tenant  has  a  bad  bargain^ 

and  cannot  pay  his  rent  out  of  the  land,  he  can  throw 
[  *33T  ]  *the  lease  up,  and  the  landlord  cannot  hold  him  to  it. 

But  it  appeared  to  him  (the  Chief  Baron)  a  strange 
cause  of  complaint  that  a  landlord  cannot  insist  on  kee))ing  fi  ten- 
ant who  is  unable  to  pay  his  rent.  In  Ireland  the  great  difliculty 
is  to  get  rid  of  a  tenant  who  cannot  pay  his  rent,  and  their  pran- 
dial disturbances  and  crimes  grew  out  of  attempts  to  do  so.  Yet 
this  is  the  objection  wl)ich  Lord  Manners  threw  out  in  an  cxtra- 
judkial  opinion  in  a  case  before  him.  He  now  came  to  the 
ground  on  Avhich  the  judgment  of  the  King's  Bench,  as  delivered 
by  Mr.  Justice  Jebb,  rested,  and  a  more  extraordinary  ground  on 
which  a  decision  could  rest  that  is  to  destroy  a  great  part  of  the 
leasehold  interests  in  some  of  the  counties  in  the  South  of  Ireland, 
never  came  within  his  (the  Chief  Baron's)  knowledge.  It  wajr 
this.  The  lessee  might  exhaust  the  land  by  repeated  cropping, 
and  might  then  throw  it  up  on  the  landlord's  hands.  It  was  true 
that  it  wixs possible,  but  if  that  posstbilitij  avoided  a  lease  for  lives, 
it  must  avoid  every  lease  where  that  possibility  exists.  Now  in 
what  case  may  not  the  tenant  exhaust  the  land,  and  leave  it  so  on 
the  landlord's  hands  ?  The  land  may  be  exhausted  completely  in 
ten  years,  and  the  probability  is  much  greater  that  a  tenant  who 
has  only  ten  years  to  come,  who  has  no  certainty  of  a  renewal, 
who  will  be  charged  a  higher  rent  on  a  new  lease  if  he  has  improv- 
ed the  land,  and  a  lower  one  if  he  has  exhausted  it,  Avill  adopt  the 
latter,  than  that  one  who  has  a  pernmnent  interest  for  three  lives 
should  do  so ;  yet  the  consequence  of  the  decision  in  the  King's 
Bench  would  be,  that  every  lease  for  ten  years  would  be  void.  It 
struck  him  that  the  objection  was  one  that  could  not  be  sustained. 
Upon  a  rehearing,  the  Chancellor's  successor  reversed  the  decree, 
and  set  aside  the  leases,  being  of  opinion  that  they  were  in- 
valid.    Upon  appeal,  the  House  of  Lords  sent  back  the  case  to 

Ireland,  and  upon  a  case  directed  to  the  Court  of  King's 
[  *338  ]  Bench  there,  three  judges  against  *one  certified  that  the 

leases  were  not  warranted  by  the  power. (c)  The  case 
is  again  before  the  House  of  Lords. 

13.  Upon  a  power  to  grant  building  leases,  such  a  lease  under 

(c)  Lord  Muskerry  v.  Sheehy,  2  Jebb  &  Sy.  300. 


TERM   WHICH   MAY   BE  GRANTED.  ,303 

the  power  expressly  exempting  the  lessee  from  rebuilding  in  case 
of  fire,  and  by  another  clause  enabling  liim  to  surrender  the  lease 
upon  notice,  of  course  could  not  be  sustained. (c?) 

14.  We  have  already  seen  tliat  a  power,  general  and  unlimited 
as  to*  the  extent  of  the  interest  to  be  created,  may  be  controlled 
by  the  context ;  but  unless  it  can  be  so  restrained,  tliat  is,  by  a 
sound  construction  of  the  whole  instrument,  the  donee  may  exer- 
cise the  power  to  its  fullest  extent. (e)  In  a  case  in  Ireland,  a 
lease  for  lives,  rcnewal)lc  for  ever,  was  settled,  with  a  power  to  the 
settlor  to  lease  the  lands  for  any  number  of  years  or  lives  con- 
sistent with  his  interest,  at  the  best  rent  without  taking  any  fine, 
and  under  the  power  a  lease  was  granted  for  lives,  renewable  for 
ever  at  a  fixed  rent :  it  became-  unnecessary  to  decide  the  point ; 
liut  the  Lord  Chancellor  said,  one  consideration  was,  was  this 
lease  made  contrary  to  the  power  of  leasing  ?  Of  this  he  enter- 
tained gi-cat  doubt,  so  much  so  that  he  would  not  have  decided 
the  cause  upon  that  ground  until  he  had  first  taken  the  opinion  of 
a  court  of  law  upon  it.(/) 

15.  And  in  Mountjoy's  case,(o')  where  by  a  settlement  by  act 
of  parliament,  the  parties  were  restrained  from  aliening,  except- 
ing for  life,  for  jointure,  or  for  the  life  of  any  other  person,  or 
for  years,  or  at  will,  according  to  the  custom  of  the  manor,  re- 
serving the  ancient  rent,  a  lease  was  granted  under  the  power  for 
300  years,  and  no  exception  was  taken  to  the  length  of  the  term. 

IG.  And  where  by  an  act  of  parliament, (A)  some 
waste  *land  granted  to  a  vicarage  was  authorized  to  be  [  *339  ] 
leased  by  the  vicar  for  the  time  being,  with  the  consent 
of  the  vestry,  for  such  term  or  number  of  years,  at  and  under 
such  rent,  reservations  or  payments  as  to  him  and  them  should 
seem  meet,  ))ut  the  rent  to  be  the  highest  that  could  be  got 
without  a  fine  :  the  preamble  of  the  act  stated,  that  the  ground 
might  be  let  for  a  considerable  yearly  rent,  if  a  certain  term  and 
interest  therein  for  sufficient  numl)er  of  years,  for  encouragement 
to  build  upon  and  improve  the  same,  could  be  granted.     In  1719 

(./)  Stiles  V.  Cowpcr,  3  Atk.  C92. 
(c)  Supra,  vol.  1,  p.  522. 
(/ )  O'Brien  v.  Grierson,  2  Ball  &  Coat.  023. 
(g)  6  Rep.  3.  b. 
J.  (A)  Attorney-general  v.  Moses,  2  Madd.  294. 


304  SUGDEN  ON  POWERS. 

leases  were  granted  by  the  vicar  and  vestrymen,  of  the  ground, 
for  terms  of  999  years  and  1,000  years,  at  proper  but  fixed  rents. 
An  information  and  bill  were  fded  to  set  aside  the  leases  in 
equity,  assuming  them  to  be  good  in  law  ;  but  Sir  Thomas  Plumcr 
dismissed  the  information  and  bill.  He  said  that  the  act  gave  an 
unlimited  power  of  leasing,  and  on  the  faith  of  the  act  the  lessees 
were  induced  to  take  the  lease.  He  considered  the  preamble  as 
controlled  by  the  enacting  |)art.  The  leases  were  according  to 
the  letter  and  spirit  of  the  act.  It  was  a  legislative  power  in- 
definitely to  grant  a  lease,  and  therefore  tlie  leases  were  valid. 
No  case  has  been  cited  where  under  an  unlimited  power  to  lease 
by  act  of  parliament,  a  lease  has  been  set  aside  as  too  long.  Sup- 
pose, by  deed,  an  indefinite  power  of  leasing  was  given  to  a 
tenant  for  life,  could  he  be  prevented  from  making  a  long  lease  ? 
Cujus  est  dare,  ejus  est  disponere.  And  could  not,  he  asked,  the 
Legislature  give  an  indefinite  power  of  leasing  ? 

17.  Whether  under  a  power  to  lease  for  years  or  lives,  with 
or  without  covenants  for  renewals,  leases  for  999  years  are  valid, 
is  a  point  now  before  the  House  of  Lords. (t) 


18.  As  to  leases  for  lives.  A  power  to  grant  leases  for  two 
or  more  lives,  implies  an  authority  to  grant  them  during 
[  *340  ]  the  *life  of  the  survivor,  although  tlie  power  is  silent 
in  that  respect. (^')  And  it  has  been  decided  upon  the 
13  Eliz.  c.  10,  that  a  lease  to  one  for  three  lives,  and  to  three  for 
their  three  lives,  is  the  same  thing  within  the  intent  of  the  statute 
which  restrains  leases  other  than  for  three  lives,  (^l)  The  same 
construction  would  extend  to  a  private  power  of  leasing,  but  the 
lease  must  be  made  for  lives  in  esse, (in')  and  the  lives  must  be 
concurrent ;  the  candles,  as  the  phrase  is,  must  all  be  burning  at 
the  same  time,  although  the  power  is  to  demise  "  for  one,  two,  or 
three  lives,"  which  seems  to  import  succession. (w) 

(i)  Lord  Muskerry  V.  Chinnery,  Lloy.  &  Goo.  temp.   Sugd.   185;  App.   No.   18; 
Muskerry  v.  Sheehy,  2  Jebb  &  Sym.  300;  supra,  vol.  1,  p.  523. 

(Ar)  Alsop  V.  Pine,  3  Keb.  44,  pi.  10.     See  Doe  v   Hardwicke,  10  East,  549. 

{I)  Baugh  V.  Haynes,  Cro.  Jac.  76. 

(m)  Raym.  263. 

(//)  Dee  V.  Ilalcombe,  7  Term  Rep.  13. 


TERM   WHICH   MAY   BE  GRANTED.  305 

19.  In  Dog  v.  Halcombc,(o)  the  power  was  to  lease  for  one, 
two,  or  tlirce  Ih'es,  or  for  any  term  of  years,  determinable  upon 
one,  two,  or  three  lives,  such  parts  of  the  estate  as  were  then  de- 
mised for  any  such  time,  at  so  much  rent  as  was  then  paid ;  and  it 
was  held  that  a  lease  formerly  granted  for  ninety-nine  years,  if  a 
son,  (an  infant,)  and  any  wife  of  his,  and  his  eldest  son,  or  if  no 
son,  his  eldest  daugliter  living  at  his  decease,  or  any  of  those 
three,  viz.,  son,  wife,  and  son's  son  or  daughter,  should  so  long 
live,  at  the  yearly  rent  of  205.,  with,  a  like  remainder  to  another 
son,  was  not  a  lease  of  the  description  authorized,  and  therefore 
the  proj>erty  demised  by  it  did  not  fall  within  the  power,  for  that 
meant  that  all  the  lives  should  he  in  esse,  and  named,  whereas  the 
lease  was  not  determinable  on  one,  two,  or  three  lives,  for  when 
one  died,  another  was  to  spring  up  in  his  room. 

20.  In  Long  v.  Rankin, (/j)  where  the  estate  was  in  Ireland, 
<and  the  power  wj^  to  demise  for  any  term  or  tei'ms  of  years  not 
exceeding  thirty-one  years,  or  for  one,  two,  or  three 

lives,  or  for  any  term  of  years,  not  exceeding  *thirty-  [  *341  ] 
one  years,  or  number  of  lives  not  exceeding  three  lives  ; 
a  lease  granted  for  three  lives  or  for  the  life  of  the  survivor  of 
them,  or  for  the  term  of  thirty-one  years,  was  held  to  be  valid  by 
the  House  of  Lords.  Abbott,  Chief  Justice,  in  delivering  the 
reasons  of  the  Judges  upon  this  point,  observed,  that  the  form  of 
the  lease,  as  regarded  the  term  for  which  the  tenements  were  to 
be  holden,  was  unusual,  and  scarcely  known  in  England,  but  it 
was  stated  to  be  common  in  Ireland,  and  they  thought  that  the 
language  of  the  power  must  be  understood  with  reference  to  the 
prevailing  practice,  and  the  language  of  the  lease  was  conform- 
able to  and  warranted  by  the  power  ;  and  there  was  nothing  re- 
pugnant in  itself  or  contrary  to  law  in  such  a  limitation.  Grants 
or  leases  for  the  life  of  one  or  more  persons  and  of  the  sur- 
vivor of  them,  and  for  a  term  of  years  to  commence  at  the  death 
of  the  survivor,  were  not  unknown  in  England,  and  their  legality 
had  not  been  questioned  ;  and  as  to  any  consequences  that  might 
happen  to  occur  by  the  death  of  the  lessee,  or  of  the  persons  for 
whose  lives  the  leases  might  be  made,  with  a  view  to  the  person 

(o)  Ubi  8up.  See  Right  v.  Thomas,  3  Burr.  1441;  1  Blackst.  446;  Smith  v. 
Clark,  9  Cla.  &  Fin.  12G.     Vide  supra. 

(p)  Appendix,  No.  2,  Hosier  v.  Powell,  1  Long.  &  Town.  2. 

26* 


80G  SUGDEN   ON   POWERS. 

in  whom  the  interest  might  rest  by  operation  of  law,  there  did 
not  appear  to  be  any  greater  difficulty  in  one  class  than  in  the 
other. 

21.  In  the  case  of  Common  v.  Marshall,  before  cited  for  an- 
other purpose, (</)  where  the  estate  was  in  Ireland,  and  the  power 
to  lease  was  for  any  terra  not  exceeding  thirty-one  years,  or 
three  lives,  to  commence  in  possession,  a  lease  for  three  lives,  or 
for  thirty-one  years,  which  should  last  longest,  was  held  valid,  as 
a  lease  certain  for  three  lives :  or  was  read  and^  and  the  re- 
mainder for  thirty-one  years  was  rejected  as  an  excess. 

22.  And  he  that  has  power  to  make  leases  for  three  lives  may 
make  leases  for  two  lives  ;(?•)  that  is,  as  in  the  case  of  chattel 
leases,  he  may  create  a  less  interest,  being  of  the  same  nature, 
than  the  power  mentions. 

(5)  7  Bro.  P.  C.  111.    Vide  supra,  p.  77. 
(r)  Bridg.  by  Ban.  91.  * 


OF   LEASES   IN   REVERSION. 


307 


♦SECTION  IV. 


[  *342  ] 


OF   LEASES   IN   POSSESSION    AND    IN   REVERSION. 


2.  Nature  of  a  lease  in  reversion,  of  a '  08. 
lease  in  future,  and  a  lease  in  re-  j 
niainder.  39. 

6.  Meaning  of  lease  in  reversion,  where  I  41. 
the  power  is  to  lease  for  life.  I  43. 

8.  Leases  in  reversion  for  years ;  concur- 
rent leases.  !  44. 
10.  General  power  authorizes  only  leases  I 

in  possession.  j  45. 

12.  Although  the  estate  is  then  in  lease. 
17.  So  if  tlie  power  is  to  lease  in  posses-   46. 
sion.  47. 

19.  Coventry  v.   Coventi-y,  with  observa- 
tions. 48. 

25.  Lease  in  reversion  bad,  under  power 

to  lease  for  years  determinable  on   49. 
lives. 

26.  Where  leases  in  reversion  arc  author- 

ized. 50. 

27.  )  Leases   in   possession  and  reversion 

30.  5      not  authorized.  61. 

31.  Power  in  disjunctive  for  years  or  lives,    53. 

both  not  authorized. 

32.  Where  leases  in  reversion  authorized,    54 

repeated  leases  bad.  55. 

33.  Lease  in  reversion  should  be  without 

an  interval. 

34.  Power  over  reversion  to  lease  in  pos-    5G, 

session  or  reversion.  5' 

37.  Doe  V.  Lock.  58. 


Power  to  lease  in  possession,  lease  in 

future,  if  next  day,  void. 
>  Construction   of  "  trom  the  day   of 
5      the  date,"  &c. 
Lease  valid  if  not  executed  until  it  is 

to  commence. 
Effect  of  contract  for  a  lease  at  a  future 

day. 
Lessees  from  year  to  year  attorning, 

lease  in  possession,  good. 
Presumption  of  surrender  of  prior  lease. 
Surrender  in  law  by  new  lease  to  the 

old  tenant. 
Right  of  outgoing  tenant  to  depaatui'e 

on   objection  to  lease  in  possession. 
Lease  in  reversion  invalid,  although 

term    in   power   not  exceeded   al- 
together. 
Lease  in  reversion  not  warranted  by 

former  leases,  &c. 
Leases  may  be  renewed. 
Covenant  for  renewal  not  warranted 

does  not  avoid  the  lease. 
Unices  fraudulent. 
Purchaser    bound    to    renew   under 

covenant    by    tenant   for   life  not 

warranted . 


Observations  on  Taylor  v.  Stibbert. 


1,  And  first,  in  all  well-drawn  powers  of  leasing,  where  it  is 
intended  that  a  lease  in  reversion  may  be  granted,  it  is 
'expressly  declared  so  ;  and  if  a  reversionary  lease  is  [  *343  ] 
not   to  be  granted,  it  is  expressly  declared   that  the 

lease  shall  be  made  to  take  effect  in  possession,  and  not  in  rever- 
sion, or  by  way  of  future  interest. 

2.  Lord  C.  J.  Holt  has  thus  explained  the  nature  of  a  lease  in 
reversion  :  In  the  most  ample  sense,  that  is  said  to  be  a  lease  in 
reversion  which  hath  its  commencement  at  a  future  day,  and  then 
it  is  opposed  to  a  lease  in  possession,  for  every  lease  that  is  not  a 
lease  in  possession  in  this  sense  is  said  to  be  a  lease  in  rever- 


308  SUGDEN   ON   POWERS. 

siou,(.s)  but  the  usual  construction  of  the  term  lease  in  reiH'rsion 
in  powers  is,  a  lease  to  conunence  at'tcr  the  end  of  a  present 
interest  in  being  ;  which  is  the  second  notion  of  a  lease  in  rever- 
sion.    . 

3.  The  present  language  of  the  law  agrees  with  tlie  latter 
observation  :  in  leases  granted  under  powers,  a  lease  is  said  to  l)e 
infuluro  when  it  is  granted  from  a  day  to  come  and  there  is  no 
prior  lease  subsisting,  or  if  there  is  an  existing  prior  lease,  the 
new  lease,  is  granted  not  dependent  upon  it ;  so  that  in  this  sense 
a  lease  infuluro  may  be  granted  as  well  of  a  reversion  as  a  pos- 
session :  a  lease  under  a  power  is  termed  a  lease  in  reversion 
where  it  is  to  take  effect  regularly  after  a  prior  subsisting  inter- 
est ;  or  in  other  words,  a  lease  in  reversion  in  this  sense  is  a 
lease  of  the  reversion,  to  take  effect  nut  as  a  concurrent  lease, 
but  on  the  regular  determination  of  the  prior  interest. 

4.  A  reversion  in  a  proper  legal  sense  implies  such  an  estate  to 
which  there  is  an  attendancy  of  a  particular  estate  upon  which  it 
depends  and  is  expectant,  as  the  pleading  is  ;  and  yet  even  the 
word  reversion,  secundum  subjectam  materiam,  is  often  taken  for 
terra  r  ever  lens.  But  an  estate  in  reversion  hath  been  in  all  con- 
structions of  deeds  taken  for  an  estate  infuturo,  and  not  a  pos- 
session,(^)  for  in  legal  acceptance  a  lease  for  j^ears  in 

[  *34-l:  ]  reversion  and  a  future  interest  *for  years  arc  one  and 
the  same  :(//)  a  future  lease  and  a  lease  in  reversion 
are  synonymous. 

5.  Where  a  power  authorizes  a  lease  in  remainder,  it  means  a 
future  interest,  which  is  a  remainder  in  the  grammatical  construc- 
tion and  in  the  vulgar  acceptation.  He  that  hath  a  future  inter- 
est, to  commence  after  an  existing  interest,  hath  a  remainder  ; 
that  is,  the  land  is  to  remain  to  him  after  the  particular  precedent 
estate  determined.  Nay,  nothing  else  can  be  meant  in  such  a 
case  by  a  lease  in  remainder,  for  a  legal  remainder  is  that  which 
commences  at  the  same  time  with  the  particular  estate,  which  a 
remainder  by  virtue  of  such  a  power  cannot  do.  And  thd  law 
also  expounds  remainder  and  reversion  as  one  and  the  same  thing 
in  common  acceptation. (a;) 

(s)  1  Com.  38;  and  see  Cart.  14,  15;  2  East,  383. 

(t)  Lyn  V.  Wyn,  Bridg.  by  Ban.  131. 

(w)  Per  Bridgman,  C.  J.  Cart.  14,  15. 

(z)  Bridg.  by  Ban.  99;  per  Bridgman,  C.  J. 


OP  LEASES   IN   REVERSION. 


309 


t).  But  a  lease  for  life  cannot  be  made  to  commence  at  a  future 
day,  and  for  that  reason  the  very  same  expression,  lease  in  rever- 
sion^ may  have  a  different  signification  in  the  same  conveyance. 
Being  applied  to  a  lease  for  life  it  shall  be  intended  of  a  concur- 
rent lease,  or  a  lease  of  the  reversion,  viz.  a  lease  of  that  land 
which  is  at  the  same  time  under  a  demise,  and  then  it  is  not  to 
commence  after  the  end  of  the  demise,  but  hath  a  present  com- 
mencement and  is  concurrent  with  the  prior  demise  ;  but  being 
applied  to  a  lease  for  years,  it  shall  be  intended  of  a  lease  which 
shall  take  effect  after  the  expiration  or  determination  of  a  lease 
in  being. (//) 

7.  It  appears  therefore,  that  where  a  lease  for  years  only  is  in 
existence,  an  immediate  lease  for  life  of  the  reversion  may  be 
granted,  if  authorized  l)y  the  power,  and  that  which  is  a  lease  of 
the  reversion  shall  be  considered  a  lease  in  reversion  within  the^ 
power.  But  as  a  freehold  lease  cannot  be  granted  to 
take  effect  infutiiro,  if  a  lease  for  lives  is  *gTanted,  no  [  "345  ] 
further  lease  for  lives  can  be  granted  till  the  first  lease  ''"^^vtt  ^,«/-> 
determines,  (jj) 

8.  But  although  a  lease  for  lives  cannot  be  made  in  reversion, 
that  is,  as  Coke  explains  it,  infuturo,  yet  a  lease  for  years  deter- 
minable upon  lives  may.(«)  And  where  the  power  authorizes  it, 
a  chattel  lease  may  be  granted  pending  a  prior  subsisting  one, 
provided  it  give  no  beneficial  interest  during  the  continuance  of 
the  subsisting  lease  ;(/*)  and  this,  in  speaking  of  chattel  leases,  is 
what  is  properly  called  a  concurrent  lease.  "Where  there  is  either 
a  lease  for  lives  or  a  lease  for  years  in  being,  of  course  the  lessor 
may  grant  or  demise  the  reversion  so  as  to  entitle  the  grantee  or 
lessee  to  the  immediate  benefit  of  the  existing  lease  ;  but  this  is 
an  operation  never  within  the  view  of  ordinary  powers  of  leasing, 
the  objects  of  which  is  to  secure  the  rents  for  the  persons  entitled 
to  the  reversion  under  the  settlement  creating  the  power,  and  not 
to  constitute  a  new  lessor.   ~ 

0.  But  when  it  is  ascertained  what  interests  may  by  law  be 
created,  we  must  resort  to  the  language  of  the  particular  power 
to  ascertain  what  interests  may  by  law  be  created,  we  must  resort 

(»/)  Winter  v.  Loveday,  1  Cora.  .36,  per  HoU,  C.  J. 

{z)  10  East,  184,  185. 

(rt)  Whitlock'8  case,  8  Rep.  70  b. 

(6)  10  East,  184. 


310  SUGDEN   ON    POWERS. 

to  the  language  of  the  particular  power  to  ascertain  what  intere: 
it  authorizes  to  be  granted. 
;-  Z'  10.  It  has  been  determined,  that  even  a  general  power  to  le™ 
/  for  a  certain  number  of  years,  ^v1thout  expressing  that  the  leasi 
/    shall  be  in  possession,  and  not  in  reversion,  authorizes  leases  J 
I     possession  only,  and  not  in  reversion  or  infaturo ;  for  if  by  tl 
J     power  a  reversionary  lease  might  be  made,  then  a  lease  for  t 
i     years  authorized  might  be  made  in  ])osscssion,  and  afterwards  i: 
,j/\      I     jfinite  leases  for  the  same  term  in  reversion,  which  would  be  coi 
'\  I     trary  to  the  meaning  of  the  power,  and  would  render  idle  an 

I     vain  the  express  limitation  in  the  power  of  the  number  of  years 
\   for  whicli  the  lease  might  be  granted. 

^  11.  This  was  decided  in  Lady  Sussex  v.  Wroth. (6-) 

£  *340  ]  where  "^laud  was  assured  by  the  Earl  by  act  of  parlia- 
ment to  his  wife  for  her  jointure,  the  reversion  in  fee  to 
himself,  with  a  power  to  him  to  make  leases  for  twenty-one  years, 
rendering  the  ancient  rent,  and  the  Earl  inade  a  lease  for  twenty- 
one  years,  and  before  the  end  of  it  made  another  lease  to  the 
former  lessee  for  twenty-one  years,  bearing  date  the  30tli  March, 
to  commence  at  Michaelmas  following,  and  it  was  adjudged  void 
as  a  lease  in-reversion  ;  and  if  he  miglit  make  a  lease  to  commence 
at  Michaelmas  following,  he  might  make  it  to  commence  twenty 
"^  years  after.  And  this  is  now  a  settled  point.  Bridgman,  C.  J.. 
observed,  in  a  later  case,(t/)  that  a  power  to  make  any  leases  for 
twenty-one  years  or  three  lives,  though  the  words  mention  not 
whctlier  such  leases  shall  be  in  possession  or  reversion  nor  restrain 
the  power,  yet  a  lease  cannot  be  made  at  a  day  to  come.  That 
is  the  express  case  of  Leper  v.  Wroth. 

12.  Where  the  estate  is  in  lease  at  the  time  of  the  settlement, 
and  the  power  is  to  lease  generally,  without  saying  in  possession, 
it  was  laid  down  by  Windham  and  Tvvisdcn  that  a  lease  may  be 
made  to  commence  at  the  end  of  the  lease  in  esse.  "And  the  same 
point  was  expressly  decided  in  (I)  the  Marquis  of  Northampton's 

(c)  Cro.  Eliz.  5;  S.  C.  cited  6  Rep.  33  a;  1  Leo.  35,  reported,  nom.  Leaper  v 
Wroth.  Sec  BrMg.  by  Ban.  91.  GOG;  Palm.  468,469;  Shecomb  v.  Hawkins,  Cm 
Jac.  318;  1  Brownl.  148;  Ydv.  222,  nora.  Slocomb  v.  Hawkins. 

(d)  Bridg.  by  B.vn.  9C. 

(I)  In  the  28  Eliz.  the  case  was  cited  by  Popham,  Attorney-general,  who  said  the 
lease  in  reversion  was  allowed  to  be  a  good  lease,  warranted  by  the  statute;  1  Leo. 
36.  In  the  report  of  the  case  in  4  Leo.  17(19  Eliz.),  it  is  stated  the  c;xse  was  ad- 
journed.   In  3  Leo.  71  (20  Eliz.),  it  is  stated  in  the  report  as  if  it  was  concluded. 


WHERE   LEASES   MUST   BE   IN   POSSESSION.  311 

case  by  Manwoode  and  Dyer  against  Mounson.  The  case  was  a 
peculiar  one,  for  the  first  lease  had  been  granted  by  the  husband 
and  wife  before  the  settlement,(I)  which  was  made 
by  act  of  Parliament,  and  *the  proviso  was,  that  all  [  *347  ] 
leases  made  or  to  be  made  by  the  husband  for  three 
lives  or  one  life,  or  for  twenty-one  years  or  less,  reserving  the 
accustomed  rent,  should  be  good.  The  lease  granted  under  the 
power  was  after  eight  years  of  the  first  lease  had  expired,  fc.r 
twenty-one  years  next  after  tlie  end  of  the  first  twenty-one  years. 
The  question  turned  upon  the  meaning  of  the  act,  and  as  there 
was  no  restraint  of  a  lease  in  reversion  in  the  act,  the  lease  was 
considered  good.  The  act  was  singularly  framed,  and  the  deci- 
sion hardly  established  a  general  rule.  By  the  marginal  note  in 
Dyer,  Lord  Chief  Justice  Treby(II)  appears  to  have  agreed  with 
Mounson  ;(e)  and  in  the  case  of  Baj-nes  v.  Belson,(/)  the  Court 
delivered  an  extra-judicial  opinion  that  such  a  lease  was  void. 

13.  And  in  Shccomb  v.  Hawkins, (,^")  the  estate  being  in  lease 
for  years,(ni)  a  settlement  was  made  of  it  to  the  settler  for  life, 

(e)  Dyer,  357  a;  2  Ro.  Air.  IIG],^'!.  8;  1  Leo.  SG,  cited;  reported  imperfectly  in 
3  Leo.  71.  4  Leo.  17. 

(/)  Raym.  247;  and  see  Berry  v.  Rich,  infra.  ^ 

{g)  Cro.  Jnc.  318;  1  Brownl.  148;  Yelv.  222,  nom.  Slocomb  v.  Hawkins. 

(I)  This  is  ambiguously  stated  in  3  &4  Leo.,  but  the  fact  is  not  contradicted; 
and  Dyer's  report  is  corroborated  by  the  citation  of  the  case  by  Popham.  in  1  Leo.  36; 
iiud  the  citation  is  supported  by  a  MS.  in  the  British  Museum,  where  Clinch,  J.,  is  stat- 
ed to  have  cited  the  Marquis's  case,  who  had  a  power  by  a  statute  to  make  leases; 
and  there  was  (in  old  lease  in  bring,  not  matte  by  him,  or  by  force  of  the  statute,  and 
he  made  another,  to  begin  after  the  end  of  the  fom  cr,  and  it  was  doubted  whether  it 
was  a  good  lease  or  not,  because  he  had  not  made  any  lease  before;  but  if  botli  had 
been  made  by  force  of  the  statute,  all  held  that  the  latter  had  been  void;  Bridg. 
by  Ban.,  App.  F.  600.  606;  and  Jones,  J,,  so  refers  to  it,  ib.  612;  but  Periam,  J.  in 
another  case,  states  the  case  as  if  the  Marquis  had  granted  both  the  leases;  ib.  604, 
605;  but  probably  he  only  intended  to  refer  to  the  point  then  ruled  if  the  Marquis 
had  granted  both.  The  report  in  Leonard  does  not  state  both  the  leases  to  have 
been  granted  under  the  power;  iind  in  Dyer,  before  whom  the  cause  was  tried,  and 
whose  accuracy  may  be  relied  on,  states  eipressly,  that  the  first  lease  was  granted 
before  the  creation  of  the  power.  Indeed  the  point  cannot  be  doubted,  for  Dyer 
gives  the  date  of  the  first  lease,  which  was  three  years  previously  to  the  creation  of 
the  power. 

(II)  The  Marginal  notes  in  Dyer  are  understood  to  have  been  his  production. 

(III)  This  is  80  stated,  and  appears  to  be  corroborated  by  the  statement  in  Brown- 
low.  The  case  is  reported  not  well  by  Yelverton,  as  if  both  the  leases  were  granted 
after  the  power;  and  in  Raym.  133,  it  is  said  arguendo  that  the  record  of  the  case 
does  not  warrant  Croke's  report. 


312  SUGDEN  ON  POWERS. 

with  remainder  to  her  son  in  tail,  with  ])ower  to  himsell' 
[  *348  ]   to  make  leases  at  any  time  for  twenly-one  years.     *Tlic 
settler,  l)efore  the  first  was  expired,  made  another  lease 
for  twenty-one  years,  to  begin  after  the  determination  of  tlie  for 
mer  lease,  and  it  was  held  bad,  for  it  ought  to  have  been  a  lease  in 
.     possession,  and  not  an  interest  to  begin  in  futuro  or  reversion  af- 
f    ter  another  estate  determined. 
■  i..'-'   \,  14.  In  Berry  v.  White, (/t)  Bridgman,  C.  J.,  said,  speaking  of 
•/"Lady  Sussex  and  Wroth,  but  suppose  that  at  the  time  of  such  a 
u*-\      general  indefinite  power  created  the  estate  was  only  an  estate  in 
reversion  expectant  uj>on  another,  for  years  or  lives,  then,  he  cou- 
/     /     ceived,  the  donee  might  make  a  lease  presently  after  the  power 
createil,  though  the  former  lease  was  in  being  ;  for  it  was  a  rever- 
sion \\\\L'\\  it  was  settled,  and  as  a  reversion  upon  such  a  power  he 
miglit  lease  it.     But  indeed  such  a  lease,  though  it  take  eflcct  in 
point  of  interest  do  futuro,  yet  it  must  be  made  to  beg-in  presently^ 
as  in  the  case  of  a  concurrent  lease  of  a  bishop  ;  and  this,  he 
added,  as  Justice  Jones  said  in  the  argument  of  Ev%ans  v.  Ays- 
cough,  Avas  put  b3-ropham  to  be  agreed  in  the  Marquis  of  North- 
ampton's case ;  it  is  implied  in  the  report  of  Shecomb  and  HaW' 
kin's  case  in  (pro. — And  although  in  the  case  before  him  there  Avas 
an  existing  lease  at  the  time  of  the  settlement  and  of  the  execu- 
tion of  the  power,  yet  he  treated  the  case  of  Lady  Sussex  v.  Wroth 
as  an  authority  applying  equally  to  such  a  case,  if  therd  were  no 
special  words  \(i)   and  he  relied  upon   Shecomb  and  Hawkins  as 
express  in  the  point :  there  being-  a  tease  for  years  in  being,  (as  it 
was  in  the  case  before  him,)  the  reversioner  made  another  lease 
under  the  power,  to  l)cgin  after  the  determination  of  the  former 
lease,  and  it  was  adjudged  naught,  for  it  ought  to  have  been  a 
lease  in  possession.     And  he  said  if  the  power  should  be  construed 
otherwise,  to  enable  tlie  making  of  reversionary  leases,  there  might 
be  lease  upon  lease  in  infinitum,  and  .therefore  such  indefinite 
words  in  powers  are  by  construction  of  law  bounded  and  limited, 
where  the  party  himself  doth  not  bind  or  restrain  them, 
[  *340  ]  they  are  but  as  agreements  *betAveen  the  jmrties,  and  ex- 
pounded as  other  covenants  and  agreements  are.     That 
was  the  true  reason  of  Lej)er  and  Wroth's  case.     A  lease  for  twen- 
ty-one years,  to  begin  at  Michaelmas  next,  is  not  by  construction 
of  law  pursuant  to  that  power. 

(h)  Bridg.  by  Ban.  94.  (i)  Bridg.  by  Ban.  96. 


J 


WHERE   LEASES   MUST    BE    IN    POSSESSION.  313 

15.  In  Berry  v.  White, (^^)  A.  having  made  a  lease  for  forty 
years,  at  a  rent  of  26s.  Sd.,  settled  the  estate  itself  on  himself  for 
life,  with  remainders  in  strict  settlement,  with  power  to  A.  and  af- 
ter his  decease  for  the  next  tenant  for  life,  and  the  rest  respective- 
ly, being  lawfully  seised  and  lawful  tenants  of  the  freehold  in  pos- 
session of  the  estates  by  virtue  of  the  limitations  to  make  any  lease 
of  any  part  usually  leased  theretofore,  or  then  in  lease,  whereof 
any  of  them  sliould  l)e  lawfully  seised  or  be  lawful  tenants  of  the 
freehold  in  possessi(jn,  unto  any  person  or  persons,  for  ant/  term 
or  terms  of  years,  or  life  or  lives,  so  as  such  estate  and  term  ex- 
reed  not  the  twenty-one  years,  or  three  lives  in  possession  and  re- 
mainder, or  for  any  number  of  years,  determinable  upon  one,  two. 
or  three  lives  at  the  most,  and  so  as  tlie  same  was  not  made  dis- 
punishable of  waste,  and  so  much  rent  as  was  then  reserved  should 
be  reserved.  B..  the  next  remainder-man  for  life,  (the  prior  limi- 
tations having  failed,)  in  14  Car.  1,  demised  the  property  before 
leased  by  A.  to  a  lessee  for  ninety-nine  years,  if  he  should  so  long 
live,  the  term  to  begin  after  the  death,  surrender,  forfeiture,  or 
other  determination  of  the  estate  of  the  first  lessee,  at  the  rent  of 
2C)s.  Hd.,  and  the  lease  was  held  good.  Bridgman,  C.  J.,  in  an 
elaborate  argument,  laid  it  down,  1.  That  the  lessor  was  not  re- 
(juired  to  be  in  ])Ossession  of  the  land,  but  in  possession  of  the 
Ireehold  of  tlie  land,  relying  upon  the  words  of  the  power,  for  he 
held  that  1>.  was  lawful  tenant  of  the  freehold  in  possession ;  2. 
That  the  term  was  not  required  to  counucnce  jiresently,  for  it  was 
a  general  indefinite  power  (before  the  so,  or  ita  quod,)  to  make 
any  leases  for  any  term  of  years  or  life,  and  although  in 
the  letter  of  it  it  extended  "to  leases  in  reversion  as  weft  [  'SoO  ] 
as  in  jfossession, — -for  it  is  to  make  any  leases  for  any 
term^ — yet  he  must  agree  if  there  were  no  more  in  the  case  it 
would  not  enable  to  make  leases  to  begin  at  a  day  to  come.  But 
he  grounded  himself  upon  the  words  that  followed  this  indefinite 
power,  "  so  as  such  estate  and  term  exceed  not  twenty-one  years, 
or  three  lives  in  possession  and  remainder,"  which  was  not  only  a 
clause  of  restraint,  but  also  a  clause  of  explanation  of  the  power, 
which  was  indefinitely  expressed  before.  The  law  indeed  would 
have  explained,  if  the  party  had  not  done  so  ;  but  his  intention 
appearing  that  he  meant  the  power  should  extend  to  leases  in  re- 

(fc)  Bridg.  by  Ban.  82. 

Vol.  II.  27 


314  SUGDEN   ON   POWERS. 

maindcr,  so  they  exceeded  not  twenty-one  years,  &c.  the  law  would 
not  make  contrary  exposition  ichere  the  words  vnll  bear  it  as 
largc/i/  as  the  parti/  c.rptains  it.  The  power  was  to  make  an  es- 
tate in  remainder.  And  in  conclusion,  he  said  that  the  case  was 
not  distinguishable  from  Whitlock's  case. 
•  16.  Notwitlistanding  the  elaborate  investigation  which  this  case 
underwent,  it  may  be  doubted  whether  the  case  was  well  decided. 
\j  But  the  important  point  is,  that  the  Chief  Justice  in  the  strongest 
manner  supported  the  rule,  that  a  general  indefinite  power  will 
not  autliorize  a  lease  in  reversion,  but  that  it  requires  special  words 
for  that  purpose. 

IT.  Where  the  power  is  expressly  to  lease  in  possession,  it 
woidd  no  doubt  at  this  day  be  held  that  a  lease  in  reversion  could 
not  be  granted,  although  a  lease  was  in  being  at  the  time  of  the 
settlement,  and  therefore  unless  a  lease  in  reversion  could  be 
granted  the  power  would  be  in  suspense  until  the  determination 
of  the  first  lease.  This  was  the  subject  of  great  doubt  in  an 
early  case,  where  the  estate  before  the  settlement  was  in  lease  for 
ninety-nine  years,  determinable  on  three  lives,  and  the  power  in 
the  settlement  was  to  lease  for  ninety-nine  years  or  three  lives  in 
possession,  or  for  two  lives  in  possession  and  one  in  reversion,  or 
for  one  life  in  possession  and  two  in  reversion,  and  a  lease  for  life 

was  made  during  the  first  term.  Keeling,  J.,  inclined 
[  *351  ]  that  this  "lease  was  within  the  power :  the  settlement 

being  solely  of  the  reversion,  a  present  lease  of  the  re- 
version is  within  it.  Windham  and  Twisdcn  held,  that  the  set- 
tlement being  of  a  reversion,  if  the  words  of  the  power  had  been 
generally  to  make  leases,  a  lease  of  the  reversion,  or  a  lease 
in  reversion,  would  have  been  within  it ;  but  the  power  being 
expressly  to  make  leases  in  possession  this  lease  in  reversion  is 
not  within  it ;  and  they  both  observed  the  particulars  of  the 
power  to  make  leases  for  two  lives  in  possession  and  one  in  rever- 
sion, or  one  in  possession  and  two  in  reversion  ;  so  it  appears  that 
the  scope  and  intent  was  to  have  no  estate  beyond  three  lives  in 
being  at  one  time.(/)  No  judgment  was  given  in  the  case,  as 
the  three  judges  present  did  not  agree  in  opinion, (w)  although  it 

(/)  Opy  V,  Thoma8iu3,  1  Lev.  167;  Raym,  132;  1  Keb.  778.  910. 
(m)  4  Mod.  6;  Bridg.  by  Ban.  613. 


WHERE  REVERSIONARY   LEASE   GOOD.  315 

is  said  in  the  report,  in  Sidcrfin,  that  it  was  admitted  the  lease 
was  not  within  the  power,  the  lease  not  being  in  possession. (») 

18.  In  the  Marquis  of  Antrim  v.  the  Duke  of  Bucks, (o)  which 
arose  rather  earlier,  the  estate  settled  was  a  reversion  after  a  life, 
and  the  power  was  to  make  leases  for  three  lives  in  possession. 
It  was  insisted  that  a  lease  granted  was  in  possession  in  relation 
to  the  estate  of  the  reversion,  although  an  estate  for  life  was 
before  it.  Bridgman,  C.  J.,  doubted  whether  the  lease  was  void 
on  that  point,  but  was  clear  it  was  upon  another  ;  and  Hale,  C.  B., 
said  both  points  were  worth  trial  and  argument  in  law. 

19.  In  the  modern  case  of  Coventry  and  Coventry, (;?)  leases  in 
reveri^ion,  under  a  gerei'al  power  to  demise  an  estate  in  lease  at 
the  time  of  the  settlement,  were  sustained  after  many  arguments. 
The  estate  had  been  leased  by  Lord  Coventry  and  his  ancestors 
for  09  years,  if  three  lives  so  long  lived  ;  and  at  the  time  of 
the  settlement  they  appear  all  to  have  been  out  upon 

such  leases.  By  the  settlement  the  *cstatcs  were  limited  [  *352  ] 
to  Lord  CoAcntry  for  life,  with  remainders  over  in  strict 
settlement,  with  power  for  every  person  actually  seised  of  the 
freehold  to  make  leases  of  any  part  therof  which  had  been  usual- 
ly letten  by  lease  foi*  lives  or  years  of  which  he  should  be  so 
actually  seised  by  virtue  of  the  limitation,  for  any  term  not  exceed- 
ing twenty-one  years,  or  determinable  on  one,  two,  or  three  lives, 
so  as  there  was  reserved  the  accustomed  rent,  or  more,  or  as  much 
as  could  be  got  for  the  same,  and  "  so  as  there  be  not  in  any  part 
of  the  premises  so  leased  at  any  one  time,  any  more  or  greater 
estate  or  estates  than  for  twenty-one  years,  or  three  lives,  or  for 
any  number  of  years,  determinable  on  three  lives."  Under  the 
power,  on  the  dropping  of  a  life,  leases  for  ninety-nine  years  were 
granted  in  reversion  after  the  existing  life,  determinable  on  two 
new  lives,  so  that  upon  the  old  leases  and  the  reversionary  lease 
there  were  not  at  any  one  time  upon  any  of  the  lands  demised, 
more  or  greater  estates  than  estates  for  years  determinable  upon 
three  lives.  The  Chief  Justice  on  the  hearing  of  the  case(^)  said, 
there  was  no  doubt  but  by  a  general  power  it  must  be  restrained 
to  leases  in  possession,  yet  if  there  was  anything  to  explain  the 

(n)  1  Sid.  2G1. 

(o)   1  Cha.  Ca.  17;  1  Sid.  101 ;  as  if  the  lease  was  on  this  ground  bad.     Bridg.  by 
Ban.  A  pp.  p.  617. 
(p)  1  Com.  312. 
(g)  27  April  1719,  MS.  Rep.  in  Line.  Inn  Library;  and  see  Bridg.  by  Ban.  614. 


316  SUDGEN    ON   POWERS. 

intention  of  the  to  extend  panics  to  make  leases  in  reversion,  it 
may  be  extended  thereto.  Tlicrefore,  if  there  appear  lands  in 
lease  already,  and  only  a  reversion  in  the  person  who  created  the 
power,  any  person  thereto  enabled,  who  is  tenant  for  life,  may 
make  leases  of  those  lands  in  reversion.  But  it  is  a  question  if 
the  ])0\ver  ought  not  to  be  uniform  to  extend  to  leases  either 
wholly  of  lands  in  possession,  or  wliolly  in  reversion,  where  there 
are  lands  part  in  possession  and  part  in  reversion.  Tlic  proviso  is, 
so  as,  t^r.  It  is  a  question  if  it  will  not  extend  to  lands  in  rever- 
sion, for  though  it  is  arestirctive  clause,  yet  that  is  as  to  the  num- 
ber of  years  or  lives.     A  lease  to  commence  after  the  death  of 

tenant  for  life  [created  under  a  power]  cannot  be  war- 
[  *353  ]  ranted  by  the  power,  for  the  lease  may  determine  *by 

effluxion  of  time,  surrender  or  forfeiture,  before  the 
life-estate  ;  so  here  would  be  a  chasm  in  this  case,  and  too  great 
difficulty  to  get  over.  The  Chief  Justice  said  that  he  had  men- 
tioned these  matters  only  as  proper  to  be  considered  on  the  next 
argument.  In  the  course  of  the  argument  he  observed,  that  by 
a  general  power  of  leasing  it  would  not  be  contended  that  a  lease 
in  reversion  could  be  made.  After  many  arguments  it  was  ultimate- 
ly decided  that  the  leases  were  duly  granted. (I) 

20.  This  does  not  break  in  upon  the  rule.  The  case  was  mani- 
festly decided  upon  the  apparent  intention  that  the  lives  might  be 
filled  up  as  they  dropped,  and  upon  the  clause,  so  as  there  be  not 
at  any  one  time  any  more  or  greater  estates  than  for  twenty-one 
years  or  three  lives,  or  for  years  determinable  on  three  lives  : 
for  these  words  showed  that  it  was  not  the  intent  of  the  power  to 
confine  the  party  that  he  should  make  but  one  lease,  for  it  appears 
by  the  words  in  the  plural  number  that  several  estates  were  allowed 
at  the  same  time,  but  all  were  to  be  determinable  on  three  lives. (r) 
Several  arguments,  however,  were  in  that  case  required  to  induce 
the  Judges  to  support  the  lease.  An  intention  to  allow  leases  in 
reversion  cannot  be  imputed  to  a  settlor,  unless  that  intent  is 
manifested  by  expression  or  plain  implication.  If  the  contrary 
principle  were  admitted,  it  might,  perhaps,  be  contended  that  a 
remainder-man  may,  under  a  general  power,  grant  a  reversionary 

(r)  Seethe  argument,  1  Com.  316. 

(I)  In  the  MS.  report  it  is  stated  that  this  case  "  was  never  determined,  a4  Mr. 
Phillips  tells  me."  Bridg.  by  Ban.  613;  but  there  appears  to  be  no  reason  to  doubt 
that  the  case  was  decided. 


WHERE   REVERSIONARY   LEASE   GOOD.  317 

lease  of  an  estate  demised  by  a  prior  tenant  for  life  under  the 
same  power. 

21.  Perhaps  we  should  not  pass  unnoticed  the  principle  extract 
ed  by  Mr.  Powell  (5)  from  the  case  of  Fox  v.  Prick  wood, 

(<)  as  it  would,  if  established,  be  a  very  important  *one.  [*354  ] 
It  is  this  :  "  If  there  be  a  power  to  make  leases  in 
possession  expressly,  which  attaches  upon  an  estate,  part  of  which 
is  in  possession ,  and  other  part  thereof  in  reversion  at  the  crea- 
tion of  the  power,  the  donee  of  the  power  may  immediately  make 
leases  in  possession  of  the  estate  in  reversion,  as  well  as  of  that 
in  possession."  No  such  principle,  however,  was  established  by 
that  case.  The  estate  was  limited  to  a  stranger  for  a  valuable 
consideration  for  fifteen  years,  remainder  to  the  owner  for  life, 
with  a  power  to  make  leases  in  possession.  And  the  only  ques- 
tion was,  whether  he  could  make  leases  till  his  oicn  estate  for  life 
came  into  possession  by  the  expiration  of  the  fifteen  years,  and  it 
was  holdcn  that  he  might.  The  other  question  could  not  arise,  for 
although  the  estate  demised  was  in  lease  at  the  time  of  the  settle- 
ment, yet  it  is  expressly  stated  that  that  lease  had  expired  before 
the  new  one  was  granted,  and  the  Court  considered  it  clear  that  a 
lease  in  reversion  could  not  be  granted. 

22.  In  the  case  of  Berry  v.  White,  as  we  have  seen,  the  power 
was  to  lease  for  any  term  or  lives,  so  as  it  exceeded  not  twenty- 
one  years  or  three  lives,  in  possession  and  remainder,  or  for  any 
number  of  years,  determinable  upon  one,  two,  or  three  lives,  which 
last  clause  Bridgeman,  C.  J.,  said  extended  only  to  leases  in  pos- 
session. It  was  very  true,  he  observed,  this  last  was  but  a  tautol- 
ogy, and  implied  in  the  former  ;  for  he  that  may  make  a  lease  for 
any  term  not  exceeding  twenty-one  years  or  three  lives,  may  make 
a  lease  for  any  number  of  years,  determinable  upon  one,  two  or 
three  lives,  aiid  therefore  that  there  was  put  in  ex  abundanti 
cautela,  b«t  takes  not  away  the  other  power. (w) 

28,  The  learned  Editor  of  Bridgeman's  Judgments(.r)  has  ob- 
served that  his  (Bridgeman's)  statement  of  Fox  and  Prickwood 
seems  not  to  confirm  the  opinion  expressed  in  this  work,  which, 
it  is   observed,  controverts    the  conclusion    which    Mr.   Powell 

(»)  Pow.  Pow.  425,  426. 

(0  2  Bulstr.  216;  1  Ro.  12;  Cro.  Jac.  34'J;  2  Ro.  Abr.  260,  pi.  5. 

(u)  Bridg.  by  Ban.  102. 

(x)  Ibid.  p.  164. 

27* 


;U8  SUGDKN   ON   POWERS. 

[  *355  ]  had  drawn  from  the  same  case.  This  "observation  does 
not  ajjpcar  to  I)e  correct,  for  the  Cliief  Justice  expressly 
states  that  a  /ease  for  life  was  made  before  the  settlement,  and 
that  vlien  Ike  lessee  for  life  dies,  by  virtue  of  the  power  leases 
may  be  made,  notwithstanding'  the  })receding  term  of  hfteen  years, 
whicli  leases  in  construction  of  law  should  precede  that  term. 

24.  If  a  power  of  leasing  in  eflect  authorises  an  alienation  of 
the  estate — having  regard  rather  to  the  benefit  of  the  donee  than 
the  eslate — an  inunediatc  lease  of  the  reversion  may  be  authoriz- 
ed (/y)  under  general  terms. 

2').  Where  a  power  was  to  lease  for  ninety-nine  years,  to  be  de- 
termined on  the  death  of  one,  two,  or  three  lives,  a  lease  for  ninety 
nine  years,  if  A.  should  so  long  live,  to  commence  from  the 
deaths  of  B.  and  C,  was  held  void,  although  there  was  a  subsist- 
ing lease  for  years,  if  B.  and  C.  should  so  long  live.(;:;)  Lord 
EUenborough  C.  J.,  said  that  what  induced  the  testator  to  create 
a  power  to  lease  for  ninety-nine  years,  determinable  on  three  lives, 
in  preference  to  a  power  to  lease  for  three  lives,  we  do  not  know  ; 
it  might  have  fteen  equally  beneficial  to  the  tenant  for  life  to  have 
empowered  him  to  lease  for  three  lives,  but  the  testator  has  not  so 
willed,  and  his  will  must  be  conformed  to  the  power,  which  says, 
to  demise  and  let  for  ninety-nine- years,  determinable  on  one,  two, 
or  three  lives.  The  term  "  demise  and  let"  imports  a  present  posses- 
sion ;  if  the  lease  cannot  be  executed  in  presenli,  it  is  hardly  ca- 
pable of  the  sense  belonging  to  the  expression  '■'  to  demise  and  let." 
It  does  not  appear  that  the  lease  in  question  was  anything  more 
than  a  grant  of  an  interest  to  Ijc  postponed  to  a  future  time.  The 
lessor  died  before  the  prior  lives  dropped,  the  lease  therefore  must 
take  effect,  if  at  all,  after  the  donee's  death.  The  prior  term 
might  also,  by  possibility,  be  expended  before  the  lives, 
[  *356  ]  andit  certainly  was  not  the  intention  of  the  devisor  *that 
the  tenant  for  life  should  have  power  to  posti^one  the 
grant  of  an  interest  to  so  distant  a  period,  but  only  that  he  should 
encumber  the  estate  to  the  extent  of  a  term  for  ninety-nine  years, 
determinable  on  three  lives. 

{y)  Muskerry  v.  Chinnery,  Lloy.  &  Goo.  temp.  Sugd.  185;  App.  No.  18,  siipr.i,  p. 
353;  7  Cla.  &  Fin.  42;  Muskcjry  v.  Sheehy,  2  Jebb  &  Sym.  300. 
(2)  Doe  V.  Ilieru,  5  Mau.  &  Selw.  40. 


p^~ 


LEASES   IN   POSSESSION   AND   REVERSION.  319  . 

26.  A  power  to  grant  a  lease  may,  by  the  i»articular  wording  Jjff° 
oi"  it,  authorize  a  lease  in  reversion,  although  not  so  expressly    .    ffj^* 


^        . 

% 


stated,  and  the  estate  is  not  in  lease  at  the  time  of  the  creation  of 

the  power :    Thus,  where  the  power  was  to  lease  for  any  number 

of  years,  not  exceeding  ninety-nine  years /rom  the  time  of  making 

the  demise,  it  was  adjudged  that  the  latter  words  did  not  refer  to 

the  commencement  of  the  lease,  but  only  restrained  the  making  of      s  G^^ 

the  lease  for  more  than  ninety-nine  years  from  the  making ;  and 

that  a  lease  might  be  made  for  sixty  years,  to  commence  twenty 

years  afterwards ;  for  it  would  not  exceed  ninety-nine  from  the 

time  of  making  the  demise ;  the  true  construction  of  the  power 

was,  that  he  might  lease  for  ninety-nine  years  from  the  time  of 

making  the  lease,  or  for  any  other  term  not  exceeding  ninety-nine 

years. (a)     One  of  the  judges  did  not  agree  with  this  judgment. 

It  probably  would  not  have  been  so  decided  at  this  day.(I) 

27.  Even  where  the  power  authorises  leases  in  possession  and 
reversion  not  exceeding  a  limited  uunil)cr  of  years,  yet  upon  one 
letting  a  lease  in  possession  and  another  in  reversion  cannot  be 
granted. 

*28.  Thus  in  the  case  of  Doe  v.  Harvey,(Z>)  the  power  [  *357  ] 
was  to  demise  f(j«'  any  term  of  years,  so  as  such  term 
did  not  exceed  ninety-nine  years  from  the  date  of  executing  such 
lease  ;  and  so  as  every  such  lease  be  made  to  take  eiiect  either  in 
possession  or  immediately  after  the  determination  of  the  lease  then 
subsisting-  thereof  respective!}/,  and  so  that  the  best  rent  were  re- 
served. In  May  1787,  there  were  leases  subsisting  which  would 
expire  on  the  10th  October,  1701.  On  the  29th  May,  1787,  a  lease 
was  granted  under  the  power  for  thirty  years  from  the  10th  Octo- 
'^or,  1701,  and  at  the  same  time,  under  the  same  contract,  another 

{(t)  Hiircourt  v.  Pole,  1  And.  273.     See  2  Lord  Raym.  1000. 

(/>)   1  Biirn.  &  Cress.  426;  and  2  Dow.  &  Ry.  5-<9. 

(I)  It  is  said  to  Lave  been  overlooked  in  this  wcrk,  that  the  case  was  tried  again  in 
the  next  year  in  another  Court,  where  a  contrary  judgment  was  given;  Bridg  by 
IJan.  tUO;  but  the  note  in  Moore,  7-".3,  which  is  referred  to,  docs  not  show  the  case 
was  heurd  in  another  Court,  although  Anderson's  Rep  is  of  the  33  EHz.,  and  Mo. 
cites  it  as  the  34ili,  which  proves  but  little.  The  lease  was  really  granted  a  die  con- 
fectioiiis,  and  the  power  was  for  any  number  of  years,  not  exceeding  ninety-nine 
years,  del  temps  del  confection,  dc  tiel  demise,  and  the  lease  was  held  good,  as  it  was 
only  for  sixty  year.^;  and  Moore's  note  says  "  power  in  uses  to  make  leases  not  ex- 
ceeding ninety-nine  years,  a  tempore  confectionis,  a  die  confectionis,  not  good,  which 
is  correct,  according  to  Anderson,  if  the  whole  term  had  been  granted. 


320  SUGDEN  ON   POWERS. 

lease  was  granted^  to  the  same  person  for  sixty-throe  years  from  the 
day  when  the  lease  for  thirtyyears  would  expire,  at  aless  rent  than 
was  reserved  by  the  lirst  lease.  The  ol>ject  was  to  obtain  a  larger 
rent  for  the  tenant  for  life  than  for  the  reversioner.  The  two 
leases  were  held  to  be  in  substance  l)ut  one.  It  was  held  that  the 
second  lease  was  not  a  lease  to  take  efi'ect  in  possession  or  imme- 
diately after  the  determination  of  the  lease  then  subsisting,  for 
the  only  subsisting  lease  at  that  time  was  that  which  expired  on 
10th  October,  ITUl.  It  was  said  by  the  Court,  that  if  "  the  tenant 
for  life  might  make  two  successive  leases,  he  might  make  any  oth- 
er number  ;  he  might  even  make  successive  leases  for  every  year 
of  the  term  which  the  power  enabled  him  to  grant.  Now  that 
might  be  very  prejudicial  to  the  reversioner  ;  it  might  even  make 
the  clause  of  re-entry  wholly  inoperative  ;  for  by  non-payment 
of  rent,  or  breach  of  any  of  the  covenants  in  the  several  leases, 
the  lessee  would  only  forfeit  the  subsisting  term  granted  by  the 
lease  then  running ;  and  if  he  was  turned  out  of  possession,  he 
might  enter  again  under  tlie  next  lease  :  whereas,  if  there  were 
l)ut  one  lease,  the  entire  term  would  be  forfeited  by  any  breach  of 
the  covenants.  Suppose  in  this  case  the  tenant  for  life  had 
lived  twenty-seven  years  after  the  first  lease  took  effect,  and  then 
died,  and  that  the  tenant  of  the  estate  then  refused 
[  *358  ]  *to  pay  the  high  rent  reserved  by  the  first  lease,  the 
landlord  might  re-enter,  but  at  the  expiration  of  three 
years  the  tenant  would  be  entitled  to  have  the  estate  again  at  the 
lowest  rent  reserved  by  the  second  lease  ;  but  if  the  clause  of  re- 
entry was  in  one  undivided  lease,  by  entering,  the  owner  of  the  es- 
tate would  become  possessed  of  it  for  the  entire  term.  It  was  not 
necessary  to  intimate  an  opinion  whether,  if  the  tenant  for  life 
had  honestly  made  a  lease  for  one  term,  he  might  subsequently 
and  h\  consequence  of  a  different  bargain,  have  made  another 
lease  for  a  further  term.  Here  both  the  leases  were  made  in  con- 
sequence of  one  bargain." 

29.  In  the  later  case  of  Shaw  v.  Summers,(c)  there  was  a  sub- 
sisting valid  lease  for  ninety-nine  years,  determinable  with  three 
lives.  This  lease  was  transferred  to  a  trustee  upon  trust  to  sell 
and  pay  off  some  mortgage-money  ;  and  upon  trust,  until  such 
sale,  to  let  the  premises  for  such  time  and  term,  not  exceeding 

(c)  3  Moore,  196. 


WHAT   IS   A   LEASE   IN    POSSESSION.  321 

twenty-one  years,  and  determinable  as  the  said  term  of  ninety-nine 
years  was  determinable,  as  the  trustee  should  think  proper.  In 
pursuance  of  the  trust  or  power,  the  property  was  let  from  a  day 
to  come  for  ten  years,  if  the  lives  should  so  long  continue  ;  and  it 
was  held  that  the  lease  was  not  a  valid  one  under  the  power. 

30.  Although  a  power  enable  a  man  to  make  leases  in  reversion, 

as  well  as  in  possession,  yet  he  cannot  make  a  lease  in  possession,     \    / 
and  another  lease  in  reversion,  of  the  same  land,  but  his  power  to 
make  leases  in  reversion  shall  be  confined  to  such  land  as  was  not 
then  in  possession.  (</)  ..^ 

31.  So  where  the  power  was  to  make  leases  for  any  term  or  ^ 
terms  of  years,  or  life  or  lives,  so  as  such  did  not  exceed  twenty- 
one  years  or  three  lives  in  possession  and  remainder,  or  for  any 
term  determinable  upon  three  lives  ;  a  lease  under  the  power  for 
one  life  and  ten  years  is  not  within  the  power,  for  th« 

estate  must  be  such  as  exceeds  not  *three  lives  or  twen-  [  *359  ] 

ty-one  years.     It  is  in  the  disjunctive.     Such  an  estate 

under  the  power  cannot  be  good,  for  the  ten  years  and  a  life  may  ~<,^^Ajr^ 

exceed  three  lives,  or  twenty-one  years,  and  if  by  possibility  they    ' 

may  do  so,  though  bi  facto  they  do  not,  it.will  not  amend  the 
.   matter,  (e) 

/^  32.  And  although  the  estate  Ijcing  already  in  lease,  the  power 
^  authorize  a  lyase  of  the  reversion,  yet  it  will  not,  it  seems,  author-  ^.-— "^ 

ize   rcj)catod   leases  in    reversion,  unless    the    intention   appear   ^ 

plainly.  (/) 

33.  And  the  lease  of  tlie  reversion  should,  in  the  common  accep- 
tation, 1)0  a  lease  in  reversion  ;  for  if  there  is  an  interval  between 
the  former  lease  and  the  lease  of  the  reversion,  it  may  not  be 
good,  for  such  a  power  intends  a  remainder  or  reversion  upon  that 
which  is  prccedent,(i»")  and  not  a  lease  infuluro. 

34.  Where  a  reversion  is  settled,  with  a  power  to  lease  in  pos- 
session or  reversion,  a  present  lease  of  the  reversion  may  be 
granted. 

35.  This  was  decided  in  Perott  v.  Cable, (//)  where  the  power 


((/)  Winter  v.  Lovedny,  1  Com. 

(e)  Bridg.  by  Ban.  99. 

(/)  Ibi.l.  101,  102. 

(?)  Ibid.  102. 

(ft)  2  Ro.  Abr.  'Jfjl,  pi.  9,  per  Coke  and  Winch 


fi,  per  Holt.  ^2,     U-^\   '^|l'     ^  '     ^ 


322  SUGDEN   ON   POWERS. 

was  to  make  leases  for  lives,  and  I'or  eighty  years  determinable 
upon  three  lives  in  possession  or  reversion, (i)  reserving  the  an- 
cient rent.  The  donee  may  grant  a  reversion  for  eighty  years 
determinable  upon  three  lives,  reserving  the  ancient  rent,  where 
tliere  is  an  estate  for  life  in  possession  :  although  the  words  are  in 
reversion,  and  not  of  the  reversion,  yet  it  is  good  ;  for  debt  lies 
against  the  grantee  of  the  reversion  for  the  rent  well  enough,  and 
so  no  mischief  to  those  in  reversion.  It  was  not  doubted  that  he 
migiit  have  made  a  lease  to  begin  after  the  death  of  the  tenant 
for  life  ;  so  that  he  did  less  than  he  might  have  done. 

36.  In  a  case  Avlicre  the  power  required  the  leases  to 
[  *3G0  ]  be  *in  possession  and  not  in  reversion,  a  lease  was  gran- 
ted, and  then,  before  the  determination  of  it,  another  ; 
and  Holt,  C.  J.,  at  nisi  prins,  is  reported  to  have  held,  that  by  the 
first  lease,  4;he  power  was  suspended  for  the  time  of  the  lease,  but 
that  being  expii-ed,  he  inclined  that  the  second  lease  was  good.{k) 
It  was  not  necessary  to  decide  the  point,  and  this  opinion  cannot 
be  supported. 

•n  37.  In  the  case  of  Doe  v.  Lock,(/)  the  power  was  to  lease  for 
ninety-nine  years,  determinable  on  one,  two  or  three  lives  in  pos- 
session, reversion  or  remainder  of  such  part  or  parts  of  the  prop- 
erty as  then  was,  or  had  been  anciently  demised  for  one,  two  or 
three  lives  in  possession  or  reversion,  so  as  there  were  no  more 
than  three  lives  in  being  at  one  time.  A  lease  was  granted  for 
ninety-nine  years,  determinable  upon  three  lives.  Another  lease 
was  granted  from  the  death  of  A.,  one  of  the  lives  in  the  last 
lease,  or  sooner  deter7nination  of  the  estate  then  subsisting-  and 
determinable  on  his  death,  for  the  remainder  of  the  term  granted 
by  the  former  lease,  if  two  other  lives,  or  either  of  them,  should 
so  long  \\\Q.(in')  Upon  an  ejectment  by  the  remainder-man  against 
the  lessee,  impeaching,  for  certain  reasons,  both  of  the  leases,  the 
Court  of  King's  Bench  considered  that  it  was  not  in  strictness 
necessary  to  inquire  into  the  validity  of  the  first  lease,  for  tlie  ten- 
ant for  life,  who  made  that  lease,  was  dead,  and  he  was  enable<l 
to  grant  leases  in  possession  or  reversion,  and  there  was  an  exist- 

(i)  This  is  supplieJ  from  Godb.  105,  and  is  proved  by  the  context.     The  case  is  in- 
correctly reported  in  1  Goulds.  173. 

(k)  Sands  v.  Ledger,  2  Lord  ll;iym.  792. 

(/)  2  Adol.  &  Ell.  705. 

(/«)  See  page  700,  od  column. 


WHAT   IS   A    LEASE   IN   POSSESSION.  323 

ing  life  in  each  lease.  The  second  lease  was  made  to  commence 
on  the  death  of  A.,  or  other  sooner  determination  or  avoidance 
of  such  estate  as  was  subsisting  and  determinable  on  his  death. 
The  lease  did  not  state  whether  A.,  or  who  else  was  the  existing 
life  under  the  first  lease  [but  of  course  it  was  A.,  as  the  reversion- 
ary lease  for  two  more  lives  proved.]  If,  the  Court  said,  A,  were 
dead,  the  second  lease  took  effect  on  his  death  ;  if  he 
'were  still  alive,  then,  inasmuch  as  the  lessors  of  the  [  *361  ] 
plaintiff  disclaimed  both  of  the  leases,  if  the  first  was 
not  a  valid  one,  it  was  at  all  events  at  an  end. 

38.  Where  a  lease  ought  to  be  granted  in  possession,  a  lease  in 
futiiro  is  void  ;(w)  and  if  it  be  made  to  commence  only  a  day  af- 
ter the  date  of  the  deed  creating  jt,  is  as  fatal  a  variance  from  the 
power  as  if  made  to  take  effect  at  the  expiration  of  one  hundred 
years  from  the  time  ;  and  the  rule,  as  we  have  seen,  is  the  same  in 
equity  as  at  law.(o) 

39.  It  has  long  been  settled,  that  a  lease  to  hold  "  from  hence- 
forth," "  from  the  making,"  "  from  the  time  of  the  delivery  of  the 
indentures,"  or  "  from  the  scaling  and  delivery  of  the  deed,"  is  a 
lease  in  possession,  and  not  in  futuro{'p)  and  it  shall  begin  from 
the  delivery,  where  no  time  is  mentioned  •,(/[)  and  "  from  the 
date,"  has  in  these  cases  the  same  meaning, (r)  although,  certainly, 
this  opinion  has  not  always  prevailed. (s) 

40.  And,  nice  as  the  distinction  may  seem,  the  words  "  from 
the  day  of  the  date,"  were,  by  a  series  of  decisions  prior  to  the 
famous  case  of  Pugh  and  the  Duke  of  Leeds,  holden  to  be  exclu- 
sive, and  to  render  the  demise  a  lease  in  futuro,  and  consequently 
void.  Amongst  tliese  decisions  several  modern  ones  may  be 
ranked,  which  underwent  great  consideration  ;(t}  and  even  two 

(n)  Pollnrd  v.  Greenvil,  1  Cha.  Ca.  10;  1  Cha.  Rep.  185;  Doe  v,  Calvert,  2  East, 
876,  et  supra. 

(o)  Bowes  V.  E.  L.  Water  Works,  Jacob,  ?74;  vide  supra. 

(p)  Clayton's  case,  6  Rep.  1;  Uigbam  v.  Cole,  2  Ru.  Abr.  520,  pi.  1. 

(q)  Co.  Litt.  4G  b. 

(r)  Osbom  v.  Rider,  Cio.  Jac.  135,-  Hatter  v.  Ashe,  3  Lev.  438;  1  Lord 
Raym.  84. 

(s)  Sec  Clayton's  case.  5  Rep.  1;  Bacon  v.  Wa'Jer,  1  Ro.  337;  2  Ro.  Abr.  620,  pi. 
4;  and  see  Co.  Litt.  46  b. 

(<)  Denn  v.  Feamside,  1  Wils.  176;  Attorney-general  v.  Countess  of  Portland, 
Cowp.  723,  cited;  and  see  Freeman  v.  West,  2  Wils.  165. 


324  SUGDEN   ON   P0WER3. 

cases  before  the  very  same  Judges  who  decided  Pugh  and  the 
Duke  of  Leeds. (?/) 

41.  In  that  case,  however,  after  a  full  review  of  the  authorities, 

which  Lord  Mansfield,  in  delivering  the  judgment  of 
[  •3t)2  ]  the  Court,  declared  to  be  so  many  contradictions  •back- 
wards and  forwards,  it  was  decided,  that  "  from  the  day 
of  the  date"  was  the  same  thing  as  "  from  the  date,"  and  conse- 
quently tliat  a  lease  to  hold  "  from  the  day  of  the  date,"  was  a  val- 
id lease  under  a  power  to  lease  in  possession  only.  The  principal 
ground  of  the  decision  was,  that,  "  from"  might  mean  cither  i«c/m- 
sive  or  exclusive  :  that  the  parties  necessarily  understood  and  used 
it  in  that  sense  whicli  made  their  deed  eflTectual :  that  courts  of  jus- 
tice are  to  construe  the  words  of  parties  so  as  to  effectuate  their 
deeds,  and  not  to  destroy  them,  more  especially  where  the  words 
themselves  abstractly  may  admit  of  either  meaning,  (.r)  Li  a  subse- 
quent case  before  Lord  Kcnyon,  upon  the  word  "  from"  in  an 
indictment,  in  which  the  case  of  Pugh  v.  Duke  of  Leeds  was  cit- 
ed, he  said  that  it  was  not  applicable  to  the  case  before  him  ;  and 
that  it  must  be  remembered,  that  though  he  believed  that  case  was 
rightly  decided,  the  contrary  determination  had  before  been  made 
by  all  the  Judges.  Mr.  Justice  Ashurst  observed,  that  the  case 
of  Pugh  V.  Duke  of  Leeds  was  properly  decided,  but  that  it 
turned  on  the  construction  of  a  contract  between  two  persons, 
where  their  intention  was  to  be  considered. (y) 

42.  Mr.  Powell,  in  an  elaborate  argument,  which  occupies  up- 
wards of  100  pages,  has  shown  very  successfully  that  this  deci- 
sion was  in  direct  opposition  to  the  decided  cases  ;(z)  but  howev- 
er we  may  dread  the  precedent  which  this  case  sets  for  similar  in- 
novation s,  yet,  as  the  mischief  to  be  apprehended  from  the  remov- 
al of  landmarks  must  in  this  instance  have  already  ))een  sustained, 
it  cannot  be  expected,  nor  is  it  to  be  hoped,  that  a  decision  which 
has  so  much  good  sense  for  its  basis  will  ever  be  over-ruled. 
No    one,  however,  would   be  so  rash  as  to    grant  a  lease    to 

(«)  Hotley  V.  Scot,  LoflFt,  31G;  Doe  v.  Watson,  Cowp.  189. 

(i)  Pugh  V.  Duke  of  Leeds,  Cowp.  714. 

(y)  Ptex  v.  Inhabitants  of  Gamlingay,  3  Terra  Rep.  513.  See  ex  parte  Fallon,  5 
Term  Rep.  283;  Dowling  v.  Foxall,  1  Ball  &  Beatty,  193;  Welch  v.  Fisher,  8  Taunt. 
838;  2  Moo.  378;  Rex  v.  Knight,  7  Barn.  &  Cres.  413;  1  Mann.  &  Ry.  217;  Ack- 
land  V.  Lutley,  9  Adol.  &  Ell  894. 

(«)  Pow.  Pow.  433-640. 


OF   LEASES   IN   REVERSION.  325 

hold  "  from  the  day  *of  the  date"  under  a  power  to  [  363*  ] 
grant  leases  in  possession  ;  on  the  contrary,  conveyan- 
ces ex  almndcmti  caiiiela,  always  make  the  habendum  "  from  the 
day  next  l^efore  the  day  of  the  date  of  the  deed."(l) 

43.  It  has  sometimes  happened  that  a  lease,  though  dated  back, 
and  on  the  face  of  it  appearing  to  commence  infuturo^  was  not  in 
truth  executed  till  at  or  after  the  time  when  it  was  expressed  to 
commence,  and  in  such  case  the  lease  is  a  valid  execution  of  the 
power,  and  may  be  supported  as  a  lease  in  possession  :  for  a  deed 
takes  effect  from  its  execution,  and  not  from  the  date  of  it ;  and 
therefore  if  tlie  time  of  the  execution  can  be  proved,  the  lease  can. 
not  be  defeated  ;(a)  and  extrinsic  evidence  is  admissible  to  show 
when  the  lease  was  actually  executed. (6) 

44.  Under  a  power  of  leasing,  as  we  have  seen,  a  binding  con- 
tract for  a  lease  may  be  entered  into  \{c)  and  if  a  horn  fide  con- 

(a)  Campbell  r.  Leach,  Ambl.  740;  Doe  v.  Day,  10  East,  427.  See  Hall  ▼.  Cazc- 
nove,  4  East,  477. 

(6)  Doe  V.  llobson,  15  East,  32. 
(f )  Vide  sufra,  ch.  10,  sect.  2  &  3. 

(1)  The  distinction  between  the  expressions  '  the  date'  and  the  '  day  of  the  date' 
when  used  to  describe  a  period  at  which  an  interest  is  to  commence,  or  time  to  be 
computed,  has  long  been  a  vexed  question;  and  remains  so  in  some  measure  at  this 
day.  The  deci?ion  of  the  court  in  the  case  of  Pugh  v.  the  Duke  of  Leeds,  Cowp.  R. 
714,  has  by  no  means  left  the  subject  free  from  doubt.  After  a  vei'y  laborious  exam- 
ination of  all  the  cases,  I  think  the  following  principles  may  be  considered  as  settled. 
Where  the  computation  of  time  j^to  be  made  from  an  act  done,  the  day  on  which  the 
act  is  performed  is  included;  because  (he  act  is  the  terminus  a  quo  the  computation  is 
to  be  made;  and  there  being  in  contemplation  of  law  no  fraction  of  a  day*,  (unless 
when  an  inquiry  as  to  a  priority  of  acts  done  on  the  same  day  becomes  necessary,) 
the  terminus  is  considered  as  commencing  at  the  first  moment  of  that  day.  The  only 
exception  to  this  rule  which  is  recollected,  is  established  by  the  law  merchant,  which 
consi'lc-rs  the  day  on  which  a  bill  of  exchange,  made  payable  at  so  many  days'  sight, 
is  accepted,  as  excluded. 

"  Where  the  expressions  are  '  from  the  date,'  I  understand  the  rule  to  be,  that  if  a 
present  interest  is  to  commence  from  the  date,  the  day  of  the  date  is  included;  but  if 
they  are  used  merely  to  fix  a  terminus  from  which  to  compute  time,  the  day  is  in  all 
cases  excluded.  The  rea.son  of  the  rule  is  perfectly  intelligible  and  sensible.  It  is 
that  where  words  of  equivocal  meaning  (which  these  are  admitted  to  be)  are  made 
use  of,  and  there  is  no  index  from  the  res  gestaj  to  show  the  intention  of  the  party 
who  used  them,  the  construction  shall  be  made  most  advantageous  for  him  in  whose 
favour  the  instrument  is  made."  Per  Washington,  J.,  in  Prierpont  v.  Graham,  4 
Wash.  R.  240,  241;  4  Kent's  Com.  952  and  notes,  5  ed.;  Chitty  on  Conir.  730.  a, 
Perkin's  notes,  6th  E<J. ;  Story  on  Contr.  §  601. 

Vol.  II.  28 


^ 


320 


SUGDEN   ON   POWERS. 


tract  be  entered  into  to  grant  a  lease  at  a  future  day,  it  will  notj 
be  deemed  a  lease  in  futuro  against  the  remainder-man  if  the  per-J 
son  agreeing  to  grant  it  live   beyond  the  time  limited  for  its  com- 
mencement, although  he    die  before  it  is  actually  granted,  for] 
every  contract  must  necessarily  precede  the  execution  of  \i\d) 

45.  The  foregoing  cases  arose  upon  leases  infulnro.     In  re-| 
gard  to  leases  i«.  n;rf?"SJo«,  it  has  been   decided,  that  where  thei 
lease  is  to  take  effect  in  possession  it  will  be  good,  although  thej 
estate  is  in  the  possession  of  tenants  from  year  to  year,  or  at  will,] 
provided  they  at  the  time  the  lease  is  granted  receive  directions  ■ 
to  pay  their  rent  to  the  lessee.     This  was  decided  in  the  case  of! 
Goodtitlc  V.  Funucan.(e)     The  lessees  at  will,  and  from  year  toj 
year,  in  that  case,  had  attorned  to  the  lessee  under  the  power  ; : 
and,  at  the  trial  before  Eyre,  Baron,  at  Nisi  Prius, 
[  *3G4  ]  he  left  it  to  the  jury,  *whether  the  attornment  of  the 
occupiers  to  the  defendant,  in  consequence  of  the  direc- 
tion given  them  at  the  time  of  making  the  indenture,  did  not- 
amount  to  a  surrender  by  them  ;  and  whether  they  were  not  to  be  J 
considered  as  having  become  thereby  parties  to  the  lease,  and  as] 
having  put  the  defendant  in  possession  ;  and  the  jury  were  of  that ' 
opinion  and  found  a  general  verdict  accordingly.     A  rule  for  a ; 
new  trial  having  been  granted,  it  was  insisted  against  the  lease,: 
that  the  lessor  could  not  have  brought  an  ejectment  against  the 
lessees  in  possession  at  the  time  of  the  demise,  and  therefore  had  ■ 
no  immediate  possessory  right.     But  to  this  three  answers  were  \ 
given  :  The  first,  that  the  tenants  agreed  to  this  lease,  and  surren-j 
dered  their  possession  before  the  execution  of  it,  in  order  to  make  i 
it  valid  :  the  second,  that  if  the  jury  had  not  found  the  defendant^ 
to  have  been  in  possession,  this  would  have  been  good  as  a  con- 
current lease  :(/)     The  third,  that  in  respect  of  the  power  all- 
the  subsisting  leases  were  leases  at  will.     There  was  no  outstand- 
ing lease  as  against  the  remainder-man  ;  he  would  not  have  been! 
bound  to  give  the  tenants  notice  to  quit,  but  might  have  entered ; 
upon  them  immediately.     And  upon  these  gromids  the  Court  were 
all  of  opinion  against  the  objection. 


((f)  Shannon  r.  Breadstrcet,  Rep.  t.  Redesdale,  52. 

(e)  Dougl.  505. 

(/)  As  to  this  point,  vide  infra,  s.  5. 


OP  LEASES   IN   REVERSION.  327 

46.  In  deciding  the  foregoing  case,  the  Court  did  not  state 
upon  which  of  the  three  graunds  their  judgment  was  founded  ; 
but  the  first  appears  to  be  the  true  principle  to  which  it  must  be 
referred.  And  it  even  seems  that  an  actual  lease  under  the  power,  j/' 
if  in  fact  given  up  at  the  time  of  the  execution  of  the  new  lease, 
might  be  presumed  to  be  surrendered  in  support  of  the  new  lease, 
and  at  least  in  a  bona  fide  case,  where  the  lessee  is  in  the  nature 
of  a  purchaser,  equity  would  relieve  against  tlje  want  of  a  sur- 
render, (.g-) 

i     41/ And  of  course,  if  the  new  lease  be  made  to  the  person  in 
possession  under  the  old  lease,  it  will,  without  any 
actual  "surrender,  operate  as  a  surrender  in  law  of  the  [  *365  ] 
old  lease,  and  so  no  ol>jection  on  this  head  will  lie  to 
the  new  lease ;  and  it  will  have  this  operation,  although  the  old 
lease  is  concealed,  and  does  not  appear  on  the  face  of  the  new 

^_onc^(7iJt-'  But  where  the  second  lease  does  not  pass  all  the  inter- 
est which  it  purports  to  grant,  as  if  it  be  void  because  the  best 
i'cnt  was  not  reserved,  there  it  will  not  operate  as  a  surrender  of  .  'v<>t.J^ 
the  prior  term  ;  nor  in  these  cases  is  it  material  that  the  first 
lease  is  cancelled  ;  for  cancellation  at  this  day  will  not  amount  to 
a  surrender  in  law  of  a  lease. (i) 

48.  Where  a  tenancy  from  year  to  year  has  expired,  a  lease  in 
possession  may  be  duly  granted, (^)  although  the  old  tenant  has  a 
right  to  depasture  the  meadow,  &c.  till  a  future  day.(Z) 

49.  In  tlie  case  of  Doe  v.  Lady  Cavan,(7/t)  a  lease  was  in  ex- 
istence under  a  power  of  leasing,  and  a  future  term  was  granted 
under  the  same  power  to  the  person  in  whom  the  first  lease  was 
vested,  and  the  terms  did  not  exceed  together  the  number  of 
years  for  which  leases  were  "authorized  to  be  granted.  It  was 
confidently  hoped  that  the  second  lease  would  be  considered 
merely  as  a  continuation  of  the  first.    The  case,  however,  was  dis- 

(ff)  Cjunpbell  V.  Leach.  Anibl.  740. 

(/i)  See  Wilson  v.  Sewell,  1  Blackst.  G17. 

(»)  Iloe  V.  Archbishop  of  York,  6  East,  86,  and  the  cases' there  cited;  to  which  add 
Wilson  V.  Sewell,  ubi  sup.;  Lowther  v.  Troy,  Irish  T.  Rep.  198. 

(fr)  See  Doe  v.  Calvert,  2  East,  37G.  * 

(0  See  Doe  v.  Snowden,  2  Blackst.  1224. 
\       (m)  6  Term  Rep.  oiw,  affirinel  in  Dom.  Pro.  1795.     See  printed  case,  and  G  Bro. 
r.  C.  by  Toml.  175.     See  Doe  v.  Harvey,  1  Earn.  &   Cress.  420;  2  Dowl.  &  Ry.  589; 
Shaw  V.  Summers,  3  Moore,  196. 


328  SUGDEN  ON   POWERS. 

posed  of  -without  argument,  as  it  appeared  that  the  rent  reservec 
was  not  the  rent  rc(|un-cd  l)y  the  power  :  Ijut  the  Judges  appearec 
to  have  considered  the  lirst  olyection  also  as  fatal. 

50.  It  is  no  argument  in  favour  of  a  lease  in  fuiuro,  or  in  re 
version,  under  a  i)owcr  to  lease  only  in  possession,  that  the  donoi 
of  the  power  himself  leased  the  estate  in  that  way  ;  or  that  lands 

are  always  so  leased  according  to  the  custom  of  th« 
[  *o66  ]  *count;-y.(?<)      And  although   part   of  the   lands  ar( 

leased  in  possession,  yet  if  the  lease  is  entire  it  ia 
wholly  void.(o) 

51.  In  no  power  of  leasing  in  private  settlements  was  there 
ever  any  restriction  of  renewals.     Many  advantages  may  resultj 
to  the  estate  itself  from  the  power  of  renewal,  and  the  right  tc 
renew  will  not  be  restrained  without  an  express  intention  aj 
pears,  (p) 

52.  Therefore,  whcrc(g)  a  power  to  the  master  of  the  Rolls  tc 
grant  building  leases  for  forty  years,  provided  that  after  th{ 
premises  had  been  once  Ictten,  the  Master  should  not  grant  oi 
make  any  new  or  concurrent  lease  (which  were  held  to  be  synony-^ 
mous)  until  within  seven  years  of  the  expiration  of  the  lease  the? 
in  being,  nor  for  any  longer  term  than  twenty-one  years,  it  w£ 
held  clearly  that  a  new  or  concurrent  lease  might  be  granted 
any  time  during  the  continuance  of  a  former  lease,  provided  th6 
pew  lease  operated  as  a  surrender  of  the  old  one.  The  argument 
against  the  new  lease  was,  that  the  power  being  once  executed,  it 
determined y^/'o  hac  vice,  till  the  period  came  round  again  to  make 
it  again  exercisable,  like  the  case  of  a  power  to  jointure,  and  th^ 
new  lease  was  contrary  to  the  words  of  the  i)Owcr,  for  the  firsi 
lease  was  in  being  when  the  second  was  made,  and  not  withi 
seven  years  of  expiring. 

53.  Although  the  lessor,  in  a  lease  under  a  power  covenad 
with  the  lessee  that  he  will  not  afiect  the  validity  of  the  lease,  foi 
it  will  bind  the  lessor  only,  and  if  a  new  lease  should  be  granted) 
and  that  should  not  comply  with  the  terms  of  the  power,  it  would 
be  void.     The  power  in  the  case  in  which  this  was  decided  re- 

(n)  D(Jte  V.  Calvert,  2  East,  376. 

(o)  Ibid. 

(p)  Per  Lord  JIansfield. 

(5)  Wilson  V.  Sewell,  1  Blackst.  617. 


LEASES   MAY   BE   RENEWED.  329 

quired  the  best  rcnt.(r)  It  was  said  that  the  covenant  had  a 
tendency  to  induce  the  lessor  to  run  the  question  on  the  quantum 
of  rent  very  closely,  for  if  he  renewed  at  the  end  of 
*twenty  years  from  the  first  granting  of  the  lease,  the  [  *367  ] 
remainder-man  might  have  a  lease  fixed  to  him  for 
twenty-one  years  from  that  time,  reserving  less  than  the  best 
rent  which  could  then  have  been  obtained  ;  but  the  Court  said  the 
answer  was,  that  if  the  fact  was  so,  the  lease  would  be  void. 

54.  13ut  if  the  covenant  show  an  intention  to  act  in  fraud  of 
the  1)0 wer,  equity  will  not  support  it.(.s)  But  fraud  from  such  a 
contract  sliould  not  be  lightly  inferred,  as  the  renewed  lease  must 
to  be  valid  follow  the  terms  of  the  power. 

55.  In  Taylor  v.  Stibbert,(^)  under  a  settlement  a  father  was 
tenant  for  life,  vrith  remainder  over  in  strict  settlement,  with  the 
ultimate  remainder  to  himself  in  fee,  with  a  power  to  lease  for  a 
certain  number  of  lives  or  years  at  certain  rents,  and  there  was  a 
power  to  the  father  and  son  to  appoint  new  uses  for  the  purpose 
of  sale.  The  father  granted  leases  under  the  power,  with  cove- 
nants for  renewal  on  the  dropping  of  any  life  in  the  present  or 
any  renewed  lease.  The  father  and  son  then  sold  the  estate,  and 
Lord  Rosslyn  determined  that  the  purchaser  was  bound  to  renew 
the  lease  to  the  lessee.  The  existing  leases  were  excepted  in  the 
covenant  against  incumbrances.  Lord  Rosslyn  held,  that  the  pur- 
chaser was  bound  to  grant  the  renewals.  As  for  the  lessor,  it 
was  not  competent  for  him  to  say  that  he  had  not  a  sufficient 
estate  to  support  the  estate  he  contracted  to  make.  He  was 
bound  to  procure  to  the  extent  of  his  means  :  the  purchaser  was 
bound  to  the  same  extent.  It  was  admitted,  that  during  the  life 
of  the  lessor,  the  purchaser  could  not  decline  the  performance,  at 
least  to  a  certain  extent,  of  the  engagement  entered  into  by  the 
lessor.  But  ^he  lessor  would  have  been  compelled  to  execute  a 
new  lease  specifying  the  former  covenants  in  totidem 

verbis,  *and  not  merely  to  add  a  life.     The  great  argu-  [  *368  ] 

nient  was,  that  as  the  leases  would  have  been  void  as 

against  the  sou  and  issue  in  tail,  they  could  not  extend  further  than 

(r)  Doe  V.  Bettison,  12  E.ist,  305. 

(j)  Harnett  v.  Yielding,  2  Scho.  &  Lef.  559;  vide  supra,  p.  122. 
(0  2  Ves.  jun.  437.     See  Steele  v.  Mitchell,  2  Ir.  Eq.  Rep.  1;  2  Dru.  &  War.  304; 
Clark  V.  Smith,  9  Cla.  &  Fin.  140, 

28' 


330  sue. DEN   ON   POWERS. 

swell  an  interest  as  the  father,  the  tenant  for  life,  could  give  under 
tiie  terms  of  the  power.  He  admitted  the  right  of  the  son  and  the 
trustees  to  impeach  the  leases,  but  the  leases  were  not  void  ;  they 
were  good  for  the  life  of  tlic  father  ;  and  if  the  intermediate  estates 
should  fail  in  his  life,  and  an  estate  should  be  taken  after  his 
death  under  his  reversion  in  fee,  they  would  be  good  to  all  pur- 
poses. The  issue  in  tail  might  avoid  them,  but  that  consideration 
could  not  affect  the  interest  of  an  estate  taken  totally  out  of  the 
settlement.  When  the  parties  to  the  settlement  chose  to  execute 
the  power  reserved  to  the  father  and  son,  to  appoint  new  uses  of 
the  fee,  the  settlement,  with  regard  to  tlie  estate,  was  a  nullity,  it 
was  gone,  and  the  purchaser  under  that  power  could  not  claim 
anything  under  the  settlement.  He  stated  that  this  would  not  in- 
terfere with  any  equity  of  the  persons  claiming  under  the  settle- 
ment to  impeach  the  sale  if  the  proper  price  had  not  been  paid  for 
the  estate  ;  and  he  observed  that  the  effect  of  the  exception  of 
the  subsisting  leases  in  the  covenant  against  incumbrances,  was  to 
protect  the  person  conveying  from  the  consequences  of  any  act 
to  tenants  having  subsisting  leases,  which  though  they  might  be 
liable  to  legal  objections,  yet  would  give  a  title  to  the  lessee  to 
recover  upon  the  covenant  for  quiet  enjoyment  against  the  person 
from  whom  he  derived. 

56.  The  reasoning  in  this  judgment  is  not  satisfactory.  It  is 
considered  that  the  purchaser  is  bound,  because  the  estate  l)y  the 
execution  of  the  power  is  taken  out  of  the  settlement ;  but  that 
was  a  reason  why  he  should  not  be  bound,  for  as  the  fee  was 
bought,  and  was  appointed  to  the  purcliaser,  the  estates  created 
by  the  settlement,  including  the  life-estate,  were  over-reached, 
and  consequently  no  act  by  the  tenant  for  life,  attempting  con- 
trary to  the  power  to  charge  the  inheritance,  could 
f  *369  ]  bind  the  purchaser  when  his  *estate  for  life  was  defeat- 
ed. But  the  lease,  if  valid,  bound  the  estate,  and  the 
covenant  to  renew  bound  the  tenant  for  life  ;  and  as  the  purchaser 
bought  with  notice,  he  ought  to  have  been  bound  to  renew  to  the 
extent  which  the  tenant  for  life,  if  no  sale  had  been  made,  cculd 
lawfully  have  renewed  by  force  of  his  power.  The  true  ground 
upon  which  the  decree  is  to  be  supported  is,  that  as  the  tenant  for 
life  was  personally  bound  by  his  covenant,  and  the  purchaser 
bought  with  notice,  and  indeed  subject  to  the  leases,  and  took  a 


LEASES   MAY   BE   RENEWED.  331 

sufficient  estate  to  enable  him  to  answer  the  obligations  of  the 
covenant,  he  was  bound  to  do  so  in  order  to  prevent  the  lessee 
from  having  recourse  to  the  tenant  for  life  to  enforce  damages 
against  him  for  l)reach  of  the  covenant,  (m)  The  equity,  there- 
fore, was  enforced  against  the  purchaser  in  favour  of  the  tenant 
for  life.  His  right  to  this  relief  might  have  been  ajffected  by 
his  statement  to  the  purchaser,  that  he  was  tenant  for  life,  and 
his  son  had  not  concurred,  the  covenant  was  of  no  effect ;  upon 
which  the  conveyance  was  executed.  Lord  Redesdale  has  ob- 
served, that  he  thought  the  jmrchaser  had  a  right  to  say,  that 
having  purchased  from  the  son  as  well  as  the  father,  and  the 
covenant  not  being  binding  on  the  son's  estate,  he  should  not  be 
bound  further  than  as  he  purchased  an  estate  which  was  bound, 
and  that,  therefore,  notice  or  no  notice  was  of  no  consequence  to 
him.  (a) 

57.  The  decision  in  Taylor  v.  Stibbert  has  been  referred  to 
another  ground.  It  was  said,  that  in  order  to  understand  that 
case  it  was  necessary  to  observe,  that  it  appears  by  the  judgment 
that  the  legal  estate  in  fee  was  in  the  trustees  of  the  settlement, 
and  therefore  the  trustees  held  for  all  those  persons  who  had 
equitable  interests  in  the  estate ;  and  when  the  tenant 
for  life  with  power  of  leasing  contracted  with  *Taylor  [  *370  ] 
to  execute  his  power  for  valuable  consideration,  Taylor 
had  an  equitable  interest  which  was  distinct  from  the  legal  inter- 
est, and  the  trustees  then  held  in  trust  for  him  as  well  as  for  the 
other  parties  interested  under  the  settlement.  Where  laud  is 
limited  to  the  several  uses  to  bar  dower  the  equitable  estate  is 
merged  in  the  legal,  but  where  the.  legal  estate  is  vested  in  a 
trustee  it  is  distinct  from  the  equitable  estate.  In  Taylor  v. 
Stibbert,  Lord  Rosslyn  decided  on  the  ground  that  the  purchaser 
had  notice  that  the  legal  estate  was  outstanding  in  the  trustees  of 
the  settlement,  and  that  Taylor  had  an  equitable  interest  for 
whicli  they  were  trustees.  As,  it  wa^s  added,  it  is  impossible  that 
a  settled  estate  can  be  enjoyed  except  by  means  of  the  exercise 
of  a  power  to  lease,  the  Courts  never  allow  leases  granted  by  the 

(u)  See  Gray  v.  Knox,  5  Ir.  Eq.  Rep.  4G5;  Stoughton  v.  Crosbie,  ib.  451. 
(.r)  See  2  Scho.  &  Lef.  699,  and  2  Sugrl.  on  Purch.  271;  the  word  •  not,'  before 
'  countenance,'  is  omitted  in  Lloy.  &  Geo.  t.  Sugd.  218. 


332 


SDGDEN   ON    POWERS. 


tenant  for  life  under  his  power  to  be  defeated  by  the  exercise  of  a 
power  in  the  trustees  to  appoint  new  uses  with  the  concurrence  ofj 
the  tenant  for  life.(//) 

58.  The  settlement  in  Taylor  v.  ?til)l)ert  appears  to  have  been  bj 
way  of  use  carrying  the  legal  estate  to  the  tenant  for  life  and  those 
in  reniaiuder,  and  not  to  have  vested  the  fee  in  the  trustees.   Thel 
passages  in  tlic  iudgniont  do  not  ajipear  to  show  that  the  fee  "wasl 
limited  by  tlie  settlement  to  the  trustees.     The  power  of  appoint-j 
ing  new  uses  for  the  purposes  of  a  sale  was  iu  the  father  and  sonJ 
and  they  and  the  trustees  sold.     The  passages  in  the  judgmentj 
are  these.     "  The  true  consequence  as  to  the  settlement  is  this ; 
When  the  parties  to  the  settlement  chose  to  execute  the  power! 
reserved  to  the  father  and  son  to  appoint  new  uses  of  the  fee,  the] 
settlement  with  regard  to  the  estate  was  a  nullity — it  was  gone — j 
and  the  purcliaser  under  that  power  cannot  claim  anything  under] 
the  settlement.     The  purchaser  takes  the  legal  fee  from  the  trus 
toes  and  by  the  appointment  from  the  father  and  son.     It  raovesj 

from  them."  This  may  not  Ijc  very  accurate,  l)ut  it  is] 
[  *371  ]  intelligible.      Perhaps  the  power  *authorized  the  aj>- 

pointment  of  the  fee  to  the  trustees  to  enable  them  to] 
convey  to  the  purchaser. 

59.  But  even  if  the  legal  fee  was  by  the  settlement  vested  ir 
the  trustees,  that  would  not,  it  is  submitted,  vary  the  case,  fori 
the  tenant  for  life  could  not  by  his  covenant  to  grant  a  lease  bind] 
the  equitable  estate  beyond  the  limits  of  his  power.  Whether  hel 
had  a  legal  or  an  equitable  power,  the  exercise  of  it  would  be] 
binding  on  the  estate  to  the  same  extent,  although  one  would  l)e  a] 
legal,  and  the  other  an  equitable  lease.  In  Taylor  v.  Stibbert  the] 
purchaser  liad  direct  notice,  and  the  only  question  was  whether! 
so  much  of  the  fee  as  did  not  belong  to  the  tenant  for  life  shoulc 
be  bound  in  the  hands  of  the  purchaser,  by  a  covenant  by  thej 
tenant  for  life  not  authorized  by  the  power,  and  which  would  not] 
have  bound  the  remainder-man  if  the  estate  had  not  been  sold. 

iy)  Per  Sir  L.  Shadwell,  Vice-chancellor,  8  Sim.  157.  158, 


OP   CONCURRENT  LEASES. 


333 


SECTION  Y. 


OF   CONCURRENT  LEASES 


S.S.  f^^ 


1.  Of  BisJiops' concurrent  leases. 

3.  Reiide  and  Nashe's  case. 

4.  Fox  V.  Colly er. 

6.  Whether  the  doctrine  applies  to  leases 

under  powers. 
9.  Doe  V.  Calvert,  with  observations. 


10.  Roe  V.  Prifleaux,  Avith  observations. 

14.  Bridgeman's  distinction. 

15.  New  lease  operating  as  a  surrender  iu 

law  of  the  old  one,  valid. 

16.  New  or  concurrent  leases,  where  sy- 

nonymous. 


1.  Upon  the  statute  1  Eliz,  c.  19,  which  restrained  bishops 
from  making  leases  for  more  than  twenty-one  years,  it  has  been 
solemnly  decided,  that  a  concurrent  lease  made  to  take  effect  in 
possession  is  good.(c)  Li  the  case  of  Readc  v.  Naslie,  in  the 
81st  of  Eliz., (a)  where  an  estate  was  devised  in  strict 
*settlemcnt,  the  testator's  son  being  the  first  tenant  for  [  *372  ] 
life,  with  a  proviso,  that  if  his  son  should  go  about  or 
make  any  alienations  or  discontinuance,  &c.  whereby  the  premises 
could  not  remain  as  appointed  by  the  will,  otherwise  than  for 
jointures,  for  life  only,  or  leases  for  twenty-one  years,  whereupon 
the  old  rent  should  be  reserved,  then  that  he  should  forfeit  his 
estate :  the  son  leased  for  twenty-one  years,  and  then  a  year 
before  the  expiration  of  the  lease  he  made  a  new  lease  for  twenty- 
one  years  to  another  person,  to  begin  in  presenti.  And  it  was 
argued  that  although  he  could  not  make  leases  in  reversion,  yet 
such  a  lease  as  this  he  might  make  well  enough,  for  this  lease  was 
to  begin  presently,  and  so  no  charge  to  him  in  reversion,  and  the 
inheritance  was  not  charged  in  the  whole  with  more  than  twenty- 
one  years.  And  Serjeant  Ncwdigate,  in  arguing  the  case  of 
Edwards  v.  Slater,  in  the  17th  of  Charles  the  2d,  vouched  a  case 
of  Berry  and  Richc  in  tlic  Common  Pleas,  wliere  it  adjudged,  that 
if  a  man  has  a  power  to  make  a  lease  for  years,  where  there  is 
another  lease  in  being,  tliere,  if  he  make  a  lease  to  commence  in 
presenti  the  power  is  well  executed,  and  the  second  lease  shall 

(r)   Fox  V.   ("ollycr,  And.  Go,  pi.   140;  Mo.  107,  pi.  251 ;  Bridg.  by  Ban.  596; 
Evans  v.  Ascuith,  ib.  610. 
(n)  1  Leo.  147. 


334  SUGDEN   ON   POWERS. 

continue  so  long-  as  it  may,  taking  effect  in  possession  after  tli^ 
determination  of  the  first  lease. (Z;) 

2.  In  13crry  v.  White, (c)  the  ease  above  referred  to,  Bridgmai 
C.  J.,  was  of  opinion  that  where  the  power  was  a  general  one 
like  that  in  Lady  Sussex  v.  Wroth, (f/)  and  there  was  a  lease  ij 
being  at  the  time  of  the  settlement,  the  donee  of  the  power  migl 
grant  a  present  lease  of  the  reversion,  but  that  such  a  lease  mus 
be  made  to  begin  presently,  as  in  the  case  of  a  concurrent  leas 
of  a  bishop  ;  and  he  observed  that  this,  as  Justice  Jones  said  i| 
the  argument  of  Evans  v.  Ayscough,  was  put  by  Popham  to  b< 
agreed  in  the  Marquis  of  Northampton's  cas'e  ;  it  is  implied  in  th^ 

report  in  Cro.  of  Sheeomb  v.  Hawkins. 
[  *37o  ]       *3,  One  of  the  arguments  we  have  seen  in  favour  ol 

the  lease  in  Goodtitle  v.  Funucan  was,  that  it  was  gooc 
as  a  concurrent  lease,  and  for  this  the  case  of  Reade  and  Nash^ 
was  cited.  Lord  Mansfield  in  giving  judgment  said,  that  Read^ 
and  Nashe  was  cited,  where  under  a  proviso  to  grant  leases  onlj 
for  tvjenty-one  years,  a  lease  had  been  granted  in  4  Ph.  &  Mai 
for  twenty-one  years,  and  afterwards,  18  Eliz.,  a  year  before  th^ 
expiration  of  that  lease,  another  was  granted  of  the  same  premise! 
for  twenty-one  years  to  begin  presently,  and  it  was  held  that  the 
second  lease  was  good ;  the  reason  given  was  a  strong  one,  viz. 
that  the  inheritance  was  not  charged  in  the  whole  with  more  than 
twenty-one  years.  No  authority,  he  said,  Avas  cited  against  this 
case,  nor  any  answer  given  to  the  reasoning  in  it.  The  words  of 
the  loth  Eliz.  c.  10,  he  added,  as  strongly  required  leases  to  be 
in  possession,  and  not  in  reversion,  as  those  in  this  or  any  of  the 
common  powers  to  tenants  for  life ;  yet  in  the  case  of  Fox  v. 
Colly er  all  the  Judges  held  that  an  immediate  lease  for  twenty- 
one  years  of  premises  on  which  there  was  a  subsisting  lease  for 
four  years  was  good.  The  18th  of  Eliz.  c.  11,  restrained  ihi^ 
right  to  make  such  concurrent  leases  to  cases  where  the  old  lease 
had  not  more  than  three  years  to  run.  In  a  very  recent  case, 
decided  by  Grose,  Lawrence,  and  Le  Blanc,  J.  an  obiter  opinion 
was  delivered,  tliat  according  to  the  case  of  Goodtitle  and  Funu- 
can, a  concurrent  lease  might  be  granted  under  a  power  to  lease 

(/<)  Hard.  412. 

(c)  Bridg.  by  Ban.  94. 

id)  Supra,  p.  345. 


OF   CONCURRENT  LEASES  BY   BISHOPS.  335 

in  possession ;  and  the  like  opinion  was  delivered  in  the  later 
case  of  Roe  v,  Prideaux,  when  Lord  Ellenborough  was  C.  J. ; 
but  this  opinion  was  not  delivered  on  two  leases  under  the  potoer, 
but  in  a  case  where  the  first  tenancy  was  not  created  by  force  of 
the  jiowcr. 

4.  Thus  stand  the  authorities  in  favour  of  concurrent  leases. 
As  the  doctrine  owes  its  foundation  to  the  case  of  Fox  and  Coll- 
yer,  it  may  be  proper  to  open  the  other  side  of  the  question,  Avith 
some  observation  on  tliat  case.  At  the  common  law  the 
bishop  could  not  make  any  lease  without  *the  confirma-  [  *374  ] 
tion  of  his  dean  and  chapter  ;  the  stat.  of  32  Hen. 
8,  c.  28,  enabled  bishops,  of  their  own  authority,  to  make  leases 
for  twenty-one  years,  under  certain  restrictions  ;  but  this  did  not 
prevent  them  from  granting  the  possessions  of  their  Sees  for  any 
term,  with  proper  confirmation.  Elizabeth,  upon  lier  accession  to 
the  tiirone,  after  the  sanguinary  reign  of  Mary,  found  the  princi- 
palities of  the  church  filled  by  Roman  Catholics.  These  she  re- 
solved to  remove,  and  justly  apprehending  that  they  would  charge 
the  bishoprics  in  their  own  favour,  caused  the  stat.  of  1  Eliz.  c. 
19,  to  be  passed  ;  whereby  it  was  enacted,  that  any  estate  made 
by  bishops  of  hei'editamcnts,  parcel  of  their  bishoprics,  "  other 
than  for  the  term  of  twenty-one  years,  or  three  lives,  from  such 
time  as  it  should  begin,  and"  whereupon  the  old  rent  should  be  re- 
served, <fcc.*'  shouhl  be  void.  In  Fox  and  CoUyer,  the  second 
lease  was  duly  confirmed  by  the  dean  and  chapter,  for  it  was  not 
authorized  by  the .32  Hen.  8.  And  the  only  question  was,  whe- 
ther it  was  rendered  void  by  the  statute  of  Eliz.,  and  it  was 
determined  that  it  was  not,  because  it  was  not  either  within  the 
letter  or  the  intent  of  the  statute ;  not  within  the  letter,  as  was 
clear  l»y  the  words  ;  nor  the  intent,  because  it  was  not  prejudicial 
to  the  successor,  inasmuch  as  he  would  have  two  rents  ;  that  is, 
one  i)y  cstojjpcl,  and  the  other  in  interest,  where  ho  had  but  one 
before,  and  the  intent  of  the  statute  is  satisfied  if  there  is  no 
longer  estate  against  the  successor  than  twenty-one  years  or  three 
lives. 

5.  This  case,  however,  was  decided  against  the  opinion  of  Lord 
C.  J.  Dyer,  and  Mead,  J.  and  also  of  Plowden,  and  has  not  been 
received  as  a  satisfactory  decision,  although  under  the  authority 
of  it  bishops  at  this  day  constantly  grant  concurrent  leases,  with 


836  SUGDEN  ON  POWERS. 

» 

the  ]u-oi)cr  confirmation,  and  it  is  too  late  now  to  question  i; 
Mr.  Justice  Hutton,  in  the  1st  of  Chas.  1,  treated  the  case  as  ill 
decided  ;  he  said  it  was  a  resolution  according  to  the  very  words, 
but  without  (jucstion,  against  the  very  intent  of  the 
[  *o7o  ]  maker. (e)  And  Holborn,  in  *his  argument  in  Evans 
and  Ayscough  in  the  22d  of  Jac.  1,(/)  well  observed, 
that  the  18th  Eliz.  c.  11,  was  a  parliamentary  judgment  against 
the  decision.  And  in  the  same  case,(5')  Mr.  Justice  Doddridge 
observed,  that  a  concurrent  lease  was  very  mischievous,  and  that 
the  case  of  Fox  and  Collyer  was  only  carried  by  one  or  two  voices 
of  the  Judges.  (I)  But  Whitlock,  J.  thought  that  not  a  reason  to 
dispute  it ;  and  Jones,  J.  agreed  with  him  ;  and  Whitlock  sejmod 
to  think  that  the  same  decision  ought  to  be  made  if  the  point  were 
res  nova;  and  in  the  case  of  Thrcadneedle  and  Lineham,(A)  El- 
lis, Justice,  thought  the  opinion  of  Mr.  Justice  Hutton  was  not  to 
be  put  in  balance  with  the  resolution  of  the  Judges  in  Fox  and 
Collyer.  Wyudham,  J.,  however,  seemed  to  think  tliat  the  sta- 
tute intended  leases  in  interest  only  ;  and  Lord  C.  J.  Vaughau 
said  that  the  Judges  had  made  a  great  strain  upon  the  statute  in 
Fox  and  Collyer,  and  he  treated  a  concurrent  lease  as  not  within 
the  letter  or  the  intent  of  the  statute,  because  the  statute  intended, 
when  a  lease  was  once  made,  that  on  the  expiration  of  it  the  ad- 
vantage should  be  to  that  bishop  in  whose  time  it  expired,  and  by 
this  means  there  will,  he  added,  be  always  a  concurrent  lease  in 
being,  and  the  successor  can  never  make  an  entire  lease  :  and 
though  in  pleading  men  be  estopped  to  say  the  party  that  made 
the  latter  lease  had  no  power,  yet  this  being  found  by  verdict,  the 
Judges  might  judge  according  to  truth  ;  also  the  executors  of  the 
lessee  arc  not  bound  by  this  estoppel,  while  the  other  lease,  first 
made,  lasts,  and  if  so,  this  lease  is  not  for  the  successor's  advan- 
tage, and  so  only  good  to  some  purposes,  viz.  pleading  ;  and  in 
Sheppard's  Touchstone  it  is  said,  but  no  case  is  referred 
[  *370  ]  to,  that  in  the  case  of  a  power  to  make  leases  for  "twenty- 
one  years,  if  the  party  make  more  leases  for  twenty-on. 


(e)  Bishop  of  Chester  v.  Freeman,  Ley,  78. 

(/)  Latch.  233;  Palm.  457. 

ig)  Palm.  464. 

(A)  3  Keb.  372. 

(I)  This  seems  to  have  beeu  admitted  by  all  the  Judges ;  but  see  the  report  in  Mooei 


\ 


OP   CONCURRENT   PEASES   BY   BISHOPS.  733 

years,  at  more  times  than  one,  they  are  all  void  butthe  first ; 
because  it  is  against  the  intention  of  the  parties,  though  it  be  not 
against  the  words,  (t)  And  the  2  Jac.  c.  3,  recites  that  by  the  laws 
and  statutes  of  this 'realm,  no  bishop  can  make  any  estate  what- 
soever other  than  for  term  of  twenty-one  years  or  three  lives,  with 
such  reservation  of  rent,  and  in  such  manner  and  form,  as  by  the 
laws  and  statutes  are  provided.  It  says,  for  the  term  of  twenty-one 
years,  not  for  the  terms,  or  two  terms  of  twenty-one  years. (A^) 

0.  By  this  time  it  will  be  admitted  that  Fox  and  Collyer  is  not 
a  case  to  rule  others  by  analogy  merely  ;  and  if  any  doubt  arises 
on  the  doctrine  in  that  case,  as  applied  to  the  statute  of  Elizabeth, 
how  much  more  forciljly  must  it  arise  when  applied  to  leases  un- 
der private  powers  ?  In  that  case,  until  the  statute,  the  bishop 
pro  tempore  might  have  aliened  the  land  al)solutely,  with  the  pro- 
per confirmation,  and  still  the  concurrent  lease  is  not  valid  with- 
out such  confirmation.  This,  therefore,  is  a  case  in  which  the 
Judges  may  have  been  tempted  to  restrain  a  severe  disabling  sta- 
tute ;  and  they  may  have  considered  that  the  successor  was  only 
bound  by  a  term  of  twenty-one  years  at  most,  upon  which  he  was 
entitled  to  tlie  old  rent,  whereas  before  the  statute  he  might  have 
succeeded  to  the  land  encumbered  with  a  lease  for  two  thousand 
years  at  a  pepper-corn  rent.  ]5ut  how  widely  different  is  the 
usual  power  of  leasing :  It  is  an  enabling  power  to  a  man  who 
could  not,  of  his  own  authority,  make  a  lease  binding  on  the 
estate  for  a  single  month  ;  and  where  it  requires,  as  it  commonly 
does,  that  the  lease  should  take  effect  in  possession,  that  clearly 
means  not  merely  a  term  to  commence  in  presenti,  but  also  a  term 
to  commence  in  interest ;  the  object  of  such  a  power  is 
rather  the  benefit  of  *the  estate  than  of  the  particular  [  *377  ] 
tenant  for  life  in  possession ;  whereas  in  cases  not 
expressly  prohiljited,  the  Legislature  intended  to  leave  bishops  in 
possession  of  their  former  rights.  In  the  statute  of  Elizabeth  thf^ 
lease  is  not  required  to  take  effect  in  possession :  and  Whitlock, 
who  wo  have  seen  thought  Fox  and  Collyer  well  decided,  expressly 
distinguished  it  from  a  particular  power  of  leasing.     The  argument 

(t^  Phep.  Touch.  269.  If  this  book  was,  as  it  is  generally  snpposed,  written  br 
DodJriiJgc,  the  above  passage  shows  that  he  continued  of  the  opinion  he  expressed 
in  Evans  v.  Ayscough,  vide  supra. 

(fr)  See  Bridge,  by  Ban.  140,  where  it  is  cited  as  to  reversionary  leases. 

Vol.  II.  29 


338  SUGDEN   ON   POWERS. 

of  Mr.  Justice  Yates,  in  Wilson  v.  Sewell,(0  is  still  more  to  our 
purpose  ;  he  said  that  a  lease  in  being'  is  only  that  in  possession ; 
a  concurrent  lease  is  not  a  lease  in  esse.  It  operates  only  by 
estoppel.  It  passes  no  interest  during  the  former  lease.  The  18th 
Eliz.  meant  to  restrain  leases  in  reversion,  therefore  by  lease  "  in 
being"  the  Legislature  nient  a  lease  in  possession. 

7.  The  frame  of  the  act  also  is  important,  as  it  distinguishes 
the  case  from  a  eounnon  power  to  lease  for  any  term  not  exceeding 
a  certain  number  of  years  in  possession.  Jones,  J.  observed,  in 
Evans  v.  Aseuith,(«t)  tliat  in  Lord  Sussex's  case  a  difference  ia 
taken  between  a  private  power  given  to  a  tenant  for  life  which  he 
had  not  at  the  common  law,  which  shall  be  strictly  construed,  but 
there  it  took  away  the  power  ol"  the  bishop,  wherefore  the  act 
should  be  construed  largely  ;  and  in  Lyn  v.Wyn,(w)  Bridgman, 
C.  J.,  relied  upon  the  same  distinction. (o) 

8.  The  advantage  to  be  derived  from  the  two  rents,  which  was 
relied  on  in  Fox  and  Collyer's  case,  is  no  other  than  a  fruitful 
field  of  litigation.  If  the  second  lessee  should  enter  and  be 
ousted,  as  of  course  he  would  be,  the  rent  on  the  second  lease 
would,  it  should  seem,  be  suspended.  Or  it  may  be  thought  that, 
as  at  this  day  leases  are  made  by  deed,  the  second  lease  would  take 
effect  by  estoppel  as  a  lease  in  possession,  and  attornment  being 
now  unnecessary,  would  carry  with  it  the  right  to  the  rent  reserved 
by  the  first  lease,  and  then  the  remainder-man's  remedy 

for  his  rent  would  be  *morc  complicated  and  less  effec-  [  *378  ] 
lual  than  it  would  liave  Ih3cu  under  a  single  lease. (/)) 
And  if  it  sliould  l)e  established  that  a  concurrent  lease  is  valid, 
it  will  of  necessity  follow,  tliat  any  indefinite  number  of  concur- 
rent leases  may  be  granted  of  the  same  land,  a  doctrine  fraught  with 
too  much  inconvenience  to  beestablished  on  light  grounds.  It  should 
seem,  then,  1st,  That  whatever  may  be  the  authority  of  the  case 
of  Fox  and  Collyer,  it  cannot  be  considered  as  ruling  private 
powers  ;  and  2ndly,  That  a  concurrent  lease  cannot  be  granted 
within  the  true  spirit  and  meaning  of  such  powers.     As  to  the 

(/)  Blackst.  126. 

(»n)  Bridg.  by  Bun.  611. 

(>i)  Biidg.  by  Ban.  122. 

(o)  Ibid.  138. 

(p)  See  Bridg.  by  Ban.  136. 


OF   CONCURRENT  LEASES.  339 

authorities  in  favour  of  the  contrary  doctrine,  we  may  first  ease 
the  point  of  Berry  and  Riche,(I)  cited  by  Serjeant  Newdigate  ;(^) 
for  the  case  is  now  reported,  and  it  depended,  as  we  hava  seen,  on 
the  special  power,  and  the  lease  was  not  a  concurrent  one,  but  in 
reversion  to  commence  after  the  lease  in  being  at  the  time  the 
power  was  created.  Read  and  Nashe  was  not  decided  upon  this 
point,  for  after  the  first  lease  was  granted  a  fine  was  levied,  and 
it  was  determined  that  it  was  a  forfeiture  by  the  tenant  for  life, 
and  therefore  the  second  lease  was  void.(/-)  The  point,  therefore, 
did  not  arise,  and  we  have  merely  Coke's  argument  at  the  bar, 
who  produced  no  other  authority  than  Fox  and  CoUyer.  Besides, 
the  frame  of  the  restriction — which  gave  the  power  by  implica- 
tion— altogether  differed  from  the  usual  power  of  leasing.  Lord 
Mansfield,  in  Goodtitle  v.  Funucan,  appears  to  have  given  but 
little  consideration  to  this  point,  proI)ably  because  it  was  not 
necessary  to  the  decision  of  the  case.  He  referred  to  the  13  Eliz. 
c.  10,  whereas  the  question  in  Fox  v.  Collyer  depended  upon  the 
1  Eliz.  c.  19,  and  the  18th  Eliz.  c.  11,  to  which  he  refer- 
red, did  not  affect  the  1  Eliz.  c.  19,  and  it  is  *altogether  [  *379  ] 
erroneous  to  say  that  the  act  upon  which  Fox  and 
Collyer  depended  as  strongly  requires  leases  to  be  in  possession, 
and  not  in  reversion,  as  those  in  the  case  before  him,  or  any  of 
the  common  powers  to  tenant  for  life.  The  1  Eliz.  restrains  bish- 
ops from  making  leases  other  than  for  the  term  of  twenty-one 
years,  or  three  lives,  from  such  time  as  any  grant  or  assurance 
shall  begin.  These  words  therefore,  do  not  at  all  restrain  leases 
in  reversion,  althougii  by  construction  they  have  been  held  to  do 
so,  and  yet  to  authorize  concurrent  leases. (s)  But  the  13  Eliz., 
to  which  Lord  Mansfield  referred,  did  not  restrain  leases  in  rever- 
sion, which  was  remedied  by  the  18  Eliz.  Now  upon  the  case 
before  him  the  words  admitted  of  no  doubt :  they  differed  toto 
crelo  from  the  acts  referred  to.  The  tenants  for  life  were  empower- 
ed, when  they  should  come  and  be  in  the  actual  possession  of  the 
estate  under  the  limitations,  to  demise  them  to  any  person  in  pos- 

(q)  Vide  supra,  p.  372. 

(r)  Bridg.  by  Ban.  610.    The  statement  of  the  editor  at  the  top  of  p.  607,  appears 
to  be  erroneous. 

(s)  Sec  Bridg.  by  Ban.  136. 

(I)  This  also  is  the  case  incorrectly  cited  in  1  Keb.  Oil. 


340  sue. DEN   ON   POWERS. 

session,  but  not  by  way  of  reversion  or  future  interest  for  twenty- 
one  years,  tfec,  so  as  uj)on  any  such  lease  there  was  reserved,  to 
be  incident  and  go  along- unth  the  immediate  reversion,  so  mnch 
rent,  <fec.  Now  here,  1.  The  leases  are  to  be  in  possession  ;  2. 
Leases  by  ivay  of  reversion  or  future  interest  arc  expressly 
prohibited  ;  3.  The  rent  is  to  go  along  with  the  immediate  rever- 
sion. It  is  quite  clear  that  nothing  is  warranted  by  such  a  power, 
but  a  lease  really  in  possession,  upon  which  a  rent  actually  and 
regularly  payable  is  reserved.  But,  as  we  have  seen,  a  concurrent 
lease  is  not  a  lease  in  esse.  When  the  lessor  liatli  made  a  lease, 
he  hath  nothing  but  in  reversion  during  that  time,  and  hath  not 
authority  to  contract  for  the  possession,  for  the  lessee  has  the  land 
and  the  possession,  and  therefore  during  the  continuance  of  the 
lease  his  contract  for  any  part  of  the  term  is  a  void  contract  in  law 

and  in  fact,  but  only  good  by  estoppel  between  the  parties 
[  *380  ]  and  those  that  come  under  the  estoppel. (s)     It  *would 

be  difficult  upon  principle  to  maintain  such  a  lease  at 
all  under  a  poiver.  In  the  case  of  a  bishop's  concurrent  lease, 
with  confirmation,  the  conmion-law  rights  are  not  restrained.  Lord 
Mansfield  cited  Read  and  Nash  as  a  case  where  under  a  proviso 
to  grant  leases  o»/^ /or  twenty-one  years,  the  two  leases  were  grant- 
ed, and  it  was  held  the  second  lease  was  void.  But  the  provision, 
as  we  have  seen,  was  in  peculiar  terms,  and  according  to  what  was 
then  known  the  case  had  not  been  decided,  and  now  that  it  appears 
that  it  was  decided,  it  turns  out  to  have  been  upon  a  question 
which  rendered  it  impossible  to  decide  the  point  in  discussion. 
Lord  Mansfield  added,  that  no  authority  was  cited  against  this 
case,  nor  any  answer  given  to  the  reasoning  in  it. 

9.  In  Doe  v.  Calvert, (^)  in  a  devise  in  strict  settlement  tlie 
power  was  to  the  tenants  for  life,  as  they  should  be  in  actual  poa- 
session  of  the  estates  or  entitled  to  the  rents  thereof,  to  lease  to 
any  person  for  any  number  of  years  not  exceeding  twelve  years 
in  possession,  and  not  in  remainder,  reversion  or  expectancy,  so 
as  there  were  reserved  upon  every  such  lease  during  the  continu- 
ance thereof  the  best  rent  that  could  be  obtained,  and  that  in 
every  such  lease  there  were  contained  a  clause  of  re-entry  for 
non-payment  of  the  rent.     A  lease  was  granted  under  the  power 

(0  Plowd-  432;  Bridg.  by  Ban.  130,  131. 
(0  2  East,  376. 


OF   CONCURRENT  LEASES.  341 

from  different  periods,  some  at  a  day  to  come  (with  reference  to 
the  custom  of  the  country)  for  twelve  years,  and  the  lessee  was 
in  possession  as  tenant  from  year  to  year,  and  which  tenancy 
would  determine  at  the  periods  the  lease  was  to  begin.  Grose, 
J.,  in  delivering  the  opinion  of  the  Court,  said  that  the  lease  as  a 
lease  in  reversion  was  void  ;  but,  he  said,  at  all  events  a  concur- 
rent lease  might  have  been  granted,  according  to  the  case  of 
Goodtitlc  v.  Funucan,  for  twelve  years  immediately  commencing, 
habendum  from  a  time  past :  which  would  have  fallen  within  the 
terms  of  the  power,  which  was  to  demise  or  lease  for 
any  term  of  years  not  *exceeding  twelve  years  in  pos-  [  *381  ] 
session  and  not  in  reversion,  for  such  lease  would  have 
])een  in  possession  and  not  in  reversion,  remainder  or  expectancy, 
and  would  have  been  for  a  term  not  exceeding  twelve  years, 
which  is  the  restriction  mentioned  in  the  power.  Now  this  was 
an  extra-judicial  opinion,  resting  for  its  authority  altogether  on 
Lord  Mansfield's  opinion,  the  discrepancies .  in  which  were  not 
detected :  nor  were  the  difficulties  in  the  case  itself  grappled 
with,  for  although  some  of  the  words  are  less  strong  than  those  in 
Goodtitle  v.  Funucan,  yet  the  question  whether  the  lease  would 
have  been  such  a  lease  in  possession  as  the  power  contemplated 
was  not  discussed :  the  term  would  have  been  a  present  term,  but 
the  lease  would  have  been  in  esse,  and  the  land  Avas  already  in 
the  possession  of  a  tenant.  Considered  as  a  concurrent  lease, 
would  the  rent  have  been  payable  within  the  meaning  of  the 
power,  and  could  the  power  of  re-entry .  have  been  effectually 
exercised  ?  The  case  put  appears  not  to  have  been  well  consid- 
ered ;  for  as  the  intended  lessee  was  already  in  possession,  a  lease 
in  possesf^ion  for  twelve  years- might  have  been  granted  without 
having  recourse  to  the  doctrine  of  concurrent  leases  :  such  a  lease 
WiMild  have  operated  as  a  surrender  of  the  existing  tenancy,  and 
would  have  been  valid.  Indeed  the  very  terms  of  the  power 
seem  to  have  contemplated  such  leases. 

10.  In  a  later  case,(M)  in  which  the  Court  were  desirous  to 
distinguish  between  the  effect  of  a  power  to  lease  for  life,  and  a 
power  to  lease  for  years  determinable  upon  lives,  the  power  was 
held  to  be  in  the  alternative  to  grant  cither  a  chattel  lease  not  to 

(u)  Roe  T.  Prideaux,  10  East,  184. 
29* 


342  SUGDEN   ON   POWERS. 

t'xcccd  twenty-one  years,  or  a  rrecliold  lease  not  to  exceed  three 
lives,  and  the  Conrt  were  of  oi)lnion  tliat  the  same  premises  could 
not  at  any  one  time  l)e  umlcr  leases  for  holh  years  and  lives.  If 
this  were  so,  it  was  said,  it  might  make  an  essential  difference  to 
the  reversioner  or  remainder-man,  whether  the  premises  were  let 

for  three  lives  or  for  ninety-nine  years  determinable 
[   '-'82  ]  upon  three  lives.     *A  chattel  interest  might  be  granted 

pending  a  prior  subsisting  one,  provided  it  was  within 
the  limits  of  the  power,  and  provided  it  gave  no  beneficial  interest 
during  tlie  continuance  of  the  suljsisting  lease ;  but  so  long  as 
tliere  was  a  freehold  lease  in  esse  a  second  freehold  lease  could 
not  be  granted.  Tlic  riglit  of  granting  a  second  chattel  lease  was 
settled  in  Read  v.  Nash,  and  was  recognized  as  law  in  Goodtitle 
V.  Fvmucan.  If  a  lease  therefore  was  granted  for  lives,  no  further 
lease  could  be  granted  till  that  lease  was  determined  ;  whereas  if 
there  were  a  chattel  lease  for  ninety-nine  years,  determinable 
upon  three  lives,  and  one  of  those  lives  were  to  drop,  a  second 
chattel  lease  for  a  new  life,  in  addition  to  the  other  two,  might 
be  granted  during  the  continuance  of  the  first.  Whenever  a  life 
therefore  dropped,  there  would  be  this  essential  difference  between 
a  freehold  and  a  chattel  lease,  that  upon  the  former  no  new  life 
could  be  added,  unless  tlie  termor  would  surrender  the  first  lease  : 
whereas  upon  the  latter  a  new  life  might  be  added  without  any 
such  surrender.  In  the  one  case,  therefore,  an  important  advan- 
tage would  accrue  to  the  reversioner  or  remainder-man  if  the 
tenant  for  life  and  the  person  entitled  to  the  first  lease  could  not 
agree  upon  a  surrender ;  in  the  latter,  such  advantage  would  be 
wholly  lost. 

11.  The  power  in  Roc  v.  Prideaux  was  more  favourable  in 
words  to  the  granting  of  a  concurrent  lease  than  the  others  ;  but 
the  Court  avoided  deciding  whether  it  authorized  a  lease  in 
futuro.  The  opinion  of  the  Court  was  altogether  extra-judicial, 
and  not  grounded  upon  the  particular  terms  of  the  power.  Now 
we  have  seen  that  the  right  of  granting  a  second  chattel  lease  was 
not  settled  in  Read  v.  Nash,  and  Goodtitle  and  Funucan  once 
more  passed  without  comment.  The  observation  of  the  Court, 
4ihat  the  second  lease  was  good,  "  provided  it  give  no  beneficial 
interest  during  the  continuance  of  the  existing  lease,"  was  well 
calculated  to  try  the  rule. 


OF   CONCURRENT   LEASES.  343 

12.  Where  the  best  rent  is  required  by  the  [lower,  if 

a  ^concurrent  lease  is  granted,  and  the  value  has  risen  [  *383  ] 
since  the  first  lease,  it  would  at  all  events  be  necessary 
to  reserve  the  best,  and  therefore  a  larger  rent ;  and  so  if  the 
value  had  fallen  in  the  interim  a  less  rent  might  be  reserved. 
The  reservation  of  two  diftcrent  rents  for  the  same  period,  parti- 
cularly as  the  larger  one  in  the  first  case  could  not  be  recovered 
in  the  way  contemplated  by  the  power,  if  at  all,  during  the  con- 
tinuance of  the  first  lease,  would  clearly  show  that  such  a  lease 
could  not  be  sustained  as  a  due  execution  of  the  usual  power  of 
leasing. 

13.  Upon  the  whole,  then,  the  point  has  never  been  decided, 
and  is  not  surrounded  l)y  much  authority  ;  and  there  seems  reason 
to  suppose  that  if  it  should  ever  be  argued  on  its  true  principles 
the  decision  will  be  that  a  concurrent  lease  cannot  be  granted. 
To  guard  against  the  contrary  determination,  it  might  be  advisa- 
ble in  powers  of  leasing  to  expressl}*  declare  that  a  concurrent 
lease  shall  not  be  granted.  The  common  power  would  then  run 
thus :  for  so  many  years  in  possession,  and  not  by  way  of  rever- 
sion, or  future  or  concurrent  interest. 

14.  It  remains  to  notice  the  distinction  taken  l)y  Bridgman, 
C.  J.,  in  Berry  v.  "White. (r)  It  is,  that  where  the  power  is  a 
general  indefinite  one,  like  that  in  Lady  v'^ussex  v.  Wroth, (a;) 
that  is,  a  power  to  make  leases  for  twenty-one  years  indefinitely, 
without  a  restraint  to  make  them  in  possession,  and  there  is  a 
lease  in  being  at  the  time  of  tlie  settlement,  the  donee  of  the 
power  may  grant  a  present  lease  of  the  reversion,  but  that  such 
lease  must  be  made  to  begin  presently,  as  in  the  case  of  a  concur- 
rent lease  of  a  bishop ;  and  he  observed,  that  this,  as  Justice 
Jones  said,  in  the  argument  of  Evans  v.  Ayscough,  was  put  by 
Popham  to  be  agreed  in  the  Marquis  of  Northampton's  case  :  it  is 
implied  in  the  report  in  Croke  of  Shccomb  and  Hawkins.  Now 
this  opinion  contradicts  all  the  observations  in  the  modern  cases, 
where  the  lease  is  to  be  in  possession,  <fec. ;  and  it  is 
apprehended  *that  it  cannot  be  su])ported.  Popham  [  *384  ] 
docs  not  aj)pear  to  have  put  tliis  case  as  agreed  in  Lord 

(v)  Bridg.  by  Ban.  <ii.  (x)  Supra,  p.  345. 


r;44  suGDEN  on  powers. 

Xorthaniptoii's  casc/y)  and  it  docs  not  seem  lobe  implied  by 
the  report  in  Croke.  Such  a  power  does  not  authorize  a  lease  in 
reversion,  or  of  the  reversion,  although  there  is  a  lease  in  being. 
It  therefore  operates  as  a  power  requiring  the  leases  to  be  in 
possession.  Now  if  such  a  power  does  not  authorize  a  concurrent 
lease,  which  Bridgman  held,  how  can  a  power  which  is  only  equal 
to  it  authorize  such  a  lease  ?  If  there  is  any  difference  in  the 
words,  it  must  l)c  with  reference  to  reversionary  leases.  The 
modern  opinions  turned  upon  the  import  of  the  usual  power  of 
leasing,  and  not  upon  the  distinction  taken  by  Bridgman. 

15.  But  although  the  concurrent  lease  cannot  be  made,  yet  a 
surrender  may  be  taken  of  the  old  lease,  and  a  new  one  granted. 
If  the  new  lease  be  made  to  the  old  tenant,  an  express  surrender 
is  of  course  unnecessary  ;  and  it  is  no  o)\jection  that  the  tenant 
for  life  obtains  an  increased  rent ;  of  course  the  lease  would  be 
void  if  the  increased  was  not  the  proper  rent. 

16.  In  Wilson  v.  Sewell,  as  we  have  seen,  the  limited  restraint 
against  granting  new  or  concurrent  leases  was  held  to  mean  the 
same  thing,  that  is,  concurrent  only ;  and  yet  it  was  agreed  that 
the  clause  could  not  be  read  new  and  concurrent,  so  as  to  enable 
th«  grant  of  a  new  lease,  not  being  a  concurrent  one. (2^) 

(3/)  Vide  Supra,  p.  346-  (s)  1  Blackst.  G71. 


THE  RENT  TO   BE   RESERVED. 


34o 


^SECTION  VI. 


[  *38o  ] 


OF   THE  RENT   TO   BE   RESERVED. 


1 .  Rent  under  a  power  of  leasing  a  proper  j  31 . 

rent.  j  33, 

3.  Where  best  rent  required,  improve-  ! 

ments  cannot  be  allowed  for.  '  34. 

5.  If  fine  taken,  lease  void,  but  money  I 

may  be  expended  on  improvements.    35. 

7.  Doe  V.  Rogers,  with  observations. 

8.  If  fine  be  taken  contrary  to  prohibi-   36. 

tion,  lease  void,  thougli  the  best 
rent  is  reserved.  I  39. 

y.  Fraud  not  necessary  to  relief.  I  40. 

10.  Price  v.  Assheton.  I 

11.  AVhat  power  authorizes  a  fine  in  origi-    41. 

nal  leases. 

12.  Rejected  offers   of   higher  rents  not 

conclusive. 
IS.  Criterion  of  tlie  best  rent.  42. 

14.  )  Bad  if  the  best  rent  is  not  reserved    44. 

15.  5      for  the  whole  term. 

16.  New  lease  upon  surrender  of  old  at  an    45. 

incre.\sed  rent,  valid.  50. 

17.  Best  rent  in  building  leases,  &c.  47. 

18.  Bad  covenant  for  renewal   upon  the    66. 

same  rents  does  not  avoid  the  lease.    4b. 
10.  Rent   must   be   the  best  when   lease    51. 
commences.  i 

20.  Authority  to  deduct  repairs  not  done 

by  landlord,  if  best  rent  still  left, '  5?*. 
valid.  j 

21.  What  is  the  ancient  rent.  56. 

22.  Where  omission  of  covenants  is  a  fraud    63. 

on  the  power.  61. 

24.  Usual  or  most  rent.  64. 

25.  Rent  includes  produce  of  a  mine.  65 

27.  W  Itere  from  extent  of  property  best  i 

rent  cannot  be  known,  lease  bad.     I 

28.  Rent  for  time  past  valid,  but  must  run  ;  67. 

for  the  whole  term.  I 

20.  Reservation    of    ancient   rents,     &c.    68. 

niust  be  as  before.  j  70. 

30.  Quarterly  re.servation  instead  of  half   73 

yeaily  under  power  re<iuiring  an-  [  74. 

cient  rent,  &c. 


Half  yearly  payments  valid. 

Reservation  before  the  day  where 
valid :  after  the  day  bad. 

Doev.  Wilson:  reservation  before  first 
half  year. 

Doe  V  Moore  :  reservation  upon  im- 
proper half-yearly  d.ays. 

Doe  v.  Rutland  :  reservation  of  last 
half  year  before  the  day  valid. 

Lease  of  part  at  a  rent  pro  r.ita,  valid. 

Reservation  out  of  old  estate  and  new 
buildings,  valid. 

Doc  v.  Lock,  reservation  of  rent  out 
of  portions  of  trees  not  before  de- 
mised, bad  under  power  requiring 
ancient  rent. 

Observations  thereon. 

General  reservation  which  may  be  ren- 
dered certain,  valid. 

/  Orby  V.  Mohuu. 


Several  demises  in  one  deed. 

How  V.  Whitfield,  with  observations. 
Where   a   lease  of  opened    mines    is 

good,  though  joineil  with  unopened 

mines  not  witiiin  the  power. 
Reservation  of  one  rent  for  an  estate, 

part  of  whicii  is  not  in  the  power. 
)  \'i  hetiier  in  such  case  there  can  be 
5     apportionment. 
Doe  V.  Rendle,  with  observations. 
Rules  established. 
Lease  at  one  rent  of  an  estate,  one 

moiety  of  which   is  held   under   a 

power. 
Reservation   to   lessor,  his  heirs  and 

assigns,  &c.  valid. 
Although  lessor  not  the  settlor. 
Like  as  to  heriots,  &c. 
N\  here  no  rent  needs  be  reserved. 
.Apportionment  of  rent  umler  4  Will. 

4.  c.  22. 


1.  A- RENT,  properly  SO  called,  may  be  reserved  upon  a  lease 
derived  out  of  a  power,  notwithstanding  Colce's  opinion 
•in  Chudleigh's  case  to  the  contrary,  which  was  no  part  [  '386  ] 


346  BUGDEN   ON   POWERS. 

of  the  judgment  in  that  case,  nor  nientioned  l>y  hun  to  he  else- 
where adjudged.  It  was  said  in  favour  of  the  render,  being 
a  proper  rent,  tliat  as  the  lease  itself  by  force  of  the  power  would 
in  judgment  of  law  })recede  the  lessor's  estate,  surely  the  reserva- 
tion might  also  precede  it,  and  ought  to  be  valid. (a)  The  rent 
reserved  may  therefore  be  distrained  for  by  every  one  in  his  turn 
as  they  happen  to  be  entitled  immediately  upon  the  lease. (6) 

2.  The  questions  in  regard  to  rent  generally  arise  either  upon 
the  quantum,  or  the  mode  of  reservation.  Where  a  settled  estate 
has  l)eeu  usually  let  on  lives,  the  common  power  of  leasing  is 
upon  fines,  which,  as  the  lives  or  leases  drop,  are  considered 
among  the  annual  profits. (c)  This  is  generally  the  case  in  Ireland, 
but  it  prevails  only  in  a  few  counties  in  England.  The  power  of 
leasing  commonly  introduced  into  settlements  of  estates  in  Eng- 
land, requires  the  best  rent  to  1)0  reserved,  and  expressly  prohibits 
the  taking  of  a  fine. 

3.  Whether  the  best  rent  is  reserved,  is  a  point  to  be  decided 
by  a  Jury.  It  is  clear,  that  under  a  power  to  lease  at  rack-rent, 
improvements  by  the  tenant,  however  valual)le,  will  not  authorize 
a  lease  at  an  undervalue, (c^)  although  if  a  prior  valid  lease,  under 
wlTich  the  money  was  expended,  has  not  expired  by  effluxion  of 
time,  but  has  been  surrendered  in  law  l)y  the  acceptance  of  a 
new  lease,  Lord  Kcnyon  thought  that  equity  might  give  relief. (<?) 

4.  A  power  was  to  lease  at  the  best  and  most  improved  rent 
that  can  be  reasonably  had  or  obtained.     Lord  Redcsdale  asked, 
Docs  that  word  reasonably,  really  and  truly,  though  perhaps  in- 
troduced from  caution  into  it,  vary  the  instrument  the 

[  *387  J  least  in  the  world  ?  Would  it'not  be  a  sufficient  *exc- 
cution  of  the  power  if  the  best  and  most  improved  rent 
had  been  obtained  according  to  reasonable  estimation  of  the  best 
and  most  improved  rent  ?  But  he  should  consider  from  that,  al- 
though the  rent  reserved  may  not  l)e  the  very  best  rent  that  could 
be  got,  yet  if  it  was  fairly  and  honestly  and  reasonalily  the  best 
that  could  1)0  reserved,  without  any  fine  derived  by  the  person 
who  granted  it,  that  it  was  a  good  lease :  the  word  reasonable 

(a)  T.  Jo.  35.  (i)  Harcourt  v.  Pole,  1  And.  273.        (c)  See  1  Burr.  121. 

(d)  Roe  V.  Archbishop  of  York,  G  East,  8G;  and  see  Doe  v.  Lloyd,  3  Esp.  Rep.  78. 

(e)  Doe  V.  Lloyd,  ubi  sup. 


WHEEE   A    FINE   CANNOT   BE   TAKEN.  347 

was  a  word  merely  of  caution,  and  would  not  alter  in  any  degree 
whatever  the  construction  of  the  power. (/) 

5.  If  a  fine  be  taken  contrary  to  the  prohibition,  the  lease  can- 
not be  supported,  not  only  because  it  is  against  the  intent  of  the 
power,  but  because  it  is  evident,  that  hoivevar  considerable  the  rent, 
it  might  have  been  increased  if  the  fine  had  not  been  taken.  In 
a  case  before  Lord  Redesdale,  the  tenant  covenanted  to  lay  out 
200/.  in  improvements ;  and  it  was  argued  that  this  was  equiva- 
lent to  a  fine,  but  he  said,  that  he  thought  this  would  not  avoid 
the  contract  if  the  rent  were,  notwithstanding,  the  best  that  could 
be  got.  Such  a  covenant,  he  added,  is  not  necessarily  a  fraud. 
It  may  be  made  with  a  fraudulent  intent,  and  when  it  is  so  made 
it  will  avoid  the  .lease  ;  if  it  w^erc  colourable,  and  merely  for  the 
purpose  of  j)uttiug  money  into  the  pocket  of  the  tenant  for  life,  it 
would  avoid  the  lease  ;  or  if  it  were  not  originally  intended  as  a 
fraud,  Init  were  afterwards  used  fraudulently  (as  for  example,  a 
covenant  to  repair,  and  a  sum  of  money  under  colour  of  damages 
for  breach  of  that  covenant  recovered  by  the  tenant  for  life.)  a 
court  of  equity  would  at  least  take  care  that  the  damages  should 
be  laid  out  on  the  lands. (^) 

6.  We  should,  however,  be  cautious  in  the  application  of  ilie 
])rinciple  of  this  decision  to  cases  in  practice.     It  should 

'seem,  that  although  the  rent  reserved  be  the  full  value  [  *388  ] 
of  the  land,  yet  if  satisfactory  evidence  could  be  pro- 
duced to  a  jury  that  a  tenant  was  willing  to  give  an  additional  rent 
in  lieu  of  the  money  agreed  to  be  laid  out  in  improvements,  the 
lease  could  not  be  sujiportcd.  It  would  not  be  the  best  rent  that 
could  have  l^een  obtain^].  In  these  cases  it  is  not  necessary  that 
there  should  be  fraud  and  collusion  Ijctween  the  lessee  and  tenant 
for  life.  The  simple  question  is — Is  the  rent  the  best  rent  ?  If  it 
l>e  not,  tlie  lease  must  fall  to  tlie  ground,  however  fair  the  trans- 
action, (/t)  But  an  expenditure  on  improvements  is  not  like  a  fine 
paid.  A  man  may  l)e  willing  to  give  the  best  rent,  and  yet  im- 
prove the  estate  ;  but  if  he  were  willing  to  give  the  rack-rent  and 

{/)  2  Brod.  &  Bing.  614. 

{i;)  Shannon  v.  BnvJstreet,  1  Rep.  t.  Redesdale,  52;  and  see  Campbell  v.  Leach, 
Ambl.  740;  Doe  v.  Bettison,  12  East,  305;  Cox  v.  Day,  13  East,  122;  O'Brien  v. 
Orierson,  2  Ball  &  Beat.  328. 

(A)  See  Wright  y.  Smith,  5  Esp.  Rep.  208.     See  6  Dow,  344. 


^48  *  SUDGEN   ON   POWERS. 

a  fiuc  besides,  he  would  no  doubt  iucrcasc  the  rent  if  tiic  fine  were 
remitted. 

7.  In  Doe  v.  Rogers,  (t)  the  settlement  contained  a  power  to 
Eliz.  Rogers  to  lease  for  any  term  not  exceeding  ten  years  from 
the  date  thereof,  or  seven  years  from  the  decease  of  Eliz.  Rogers, 
to  take  cft'ect  in  possession,  so  as  there  should  be  reserved  the  Ijest 
rent  that  could  be  gotten  for  the  same,  without  taking  any  premium 
for  the  making  thereof.  Elizabetli,  in  exercise  of  tlie  power, 
granted  a  lease  for  seven  years,  to  be  computed  from  her  decease, 
at  the  yearly  rent  of  150/.  The  lessee  covenanted  to  allow  three 
younger  children  of  the  lessor  to  reside  and  Ijoard  with  him  upon 
the  })remises  at  11.  per  annum  each,  and  to  suifer  one  of  her  sous 
to  reside  with  him  upon  the  premises,  and  at  his  (-the  lessee's)  sole 
expense  provide  him  with  board  and  clothing  without  being  paid 
for  the  same.  The  lessee  was  a  child  of  the  lessor's  ;  all  tlie 
children  were  above  twenty-one.  The  case  was  tried  before  Taun- 
ton, J.,  who  held  that  the  covenants  were  in  the  nature  of  a  ))rc- 

mium  taken  Ity  the  lessor,  and  that  taking  of  any  pre- 
[  *380  ]  mium  *whatcver  made  the  lease  absolutely  void ;  and 

that  as  it  appeared  upon  the  face  of  the  lease  a  premium 
had  been  taken,  parol  evidence  was  inadmissible  to  show  that  be- 
fore the  lease  was  granted  the  land  had  been  valued  by  a  person 
of  competent  skill,  without  any  reference  to  the  covenants  by  tlie 
lessee  to  maintain  the  lessor's  children.  Upon  a  motion  for  a  new 
trial,  Park,  J.,  and  Patteson,  J.,  held  that  the  ruling  was  wrong. 
They  considered  that  unless  the  Court  could  ])ronounce  that  it  was 
impossible  that  the  lease  could  be  a  valid  execution  of  the  power 
under  any  circumstances,  the  defendant  was  entitled  to  have  his 
})arol  evidence  submitted  to  a  jury.  As  to  the  fine  or  premium, 
in  the  ordinary  acceptation  of  those  terms,  none  was  paid  or  ta- 
ken ;  and  if  benefit  to  the  tenant  for  life  be  equivalent  to  a  fine 
or  premium,  none  appears  :  for  it  did  not  necessarily  follow  that 
the  covenants  to  sup])ort  the  children  were  beneficinl  to  the  mother, 
the  tenant  for  life,  as  all  the  children  were  grown  up  and  bound 
to  maintain  themselves,  and  after  the  death  of  the  lessor  she  could 
not  be  bound  to  maintain  them.  Besides,  so  far  as  relates  to  the 
daughters,  it  was  impossible  for  the  Court  to  say  that  the  contract 

(0  5  Barn.  &  Adol.  755;  2  Nev.  &  Man.  650.     See  Clark  v.  Smith,  9  Cla.  & 
Fin.  126. 


FINE^ — BEST    RENT  RESERVED.  349 

was  necessarily  beneficial  to  the  lessor,  if  she  was  bound  to  sup- 
port them,  for  it  might  be  beneficial  to  the  lessee  ;  and  so  far  as 
relates  to  the  son,  it  was  possible  that  there  may  have  been  some 
collateral  consideration  for  it,  as  for  instance,  a  bequest  of  the 
personal  estate  of  the  lessor  to  the  son,  the  lessee.  As  to  the 
amount  of  the  rent,  that  was  generally  a  question  for  the  jury.  Did 
the  existence  of  the  above-mentioned  covenants  make  it  no  longer 
so  ?  Were  they  so  clear  a  proof  that  the  lessee  would  have  paid 
more,  and  consequently  that  this  rent  was  not  the  best,  that  no  evi- 
dence could  ever  prove  the  contrary  ?  They  conceived  that  they 
were  not  conclusive  of  this  question,  and  though  it  was  highly  pro- 
bable a  jury  would  think  tliat  the  best  rent  was  not  reserved,  it  was 
certainly  possible  that  such  evidence  might  be  adduced 
as  to  prove  it  was  ;  and  they  *relicd  on  the  case  of  Shan-  [  *390  ] 
non  V.  Bradstreet  as  a  distinct  authorit}'  on  this  part  of 
the  case.  Mr.  Justice  Taunton  retained  his  original  opinion, 
which  appears  to  be  the  correct  one.  It  should  be  borne  in  mind 
tliat  the  lease  was  not  to  commence  till  the  lessor's  death.  Now, 
if  a  parent  will  stipulate  for  the  maintenance  of  his  offspring,  that 
must  lje  deemed  money's  worth.  It  is  immaterial  whether  he  was 
bound  to  maintain  them  or  not.  It  cannot  be  doubted  that  it  is 
an  additional  annual  payment  by  the  lessee.  The  lessee  was  to 
board  and  lodge  one  child  free  of  expense,  and  this  payment  was 
to  be  made  to  a  third  person  Ijy  the  direction  of  the  tenant  for 
life,  over  wliich  the  reversioner  had  no  control,  ►^upposc  the  lessee 
had  simply  engaged  to  render  to  the  son  so  much  corn,  &c.  the 
produce  of  the  farm,  in  addition  to  the  rent  ?  The  covenants 
therefore  Avere,  it  should  seem,  equivalent  to  a  premium  on  the 
face  of  the  lease.  Was  parol  evidence  admissible  to  explain  this, 
that  is,  to  show  that  the  covenants  were  founded  upon  a  different 
consideration  ?  It  appears  to  be  dangerous  to  open  the  door  to 
such  evidence,  for  no  such  consideration  appeared  on  the  face  of 
the  deed  ;  and  if  a  tenant  for  life  is  allowed  to  mix  up  collateral 
considerations  with  tlie  consideration  for  the  lease  without  making 
any  mention  of  them,  and  they  are  afterwards  permitted  to  be 
proved  by  parol  evidence,  the  reversioner  can  never  be  certain 
upon  what  grounds  the  leases  stand  by  which  he  is  to  be  charged. 

8.  In  tlic  last  case  the  judges  discussed  the  question,  whether 
the  power  absolutely  prohibited  the  taking  of  a  fine.     The  two 

Vol.  II.  30 


350  SUGDEN   ON   POWEES. 

learned  Judges  who  agreed  assumed,  iu  order  to  try  the  question 
before  them,  that  the  power  required  two  conditions  :  iirst,  that 
there  should  be  the  best  rent ;  and  secondly,  tliat  there  should  be 
no  fine  or  premium  ;  and  that  they  observed  was  to  put  the  case 
the  most  strongly  against  the  defendant.  Mr.  Justice  Taunton 
said,  that  the  question  was  not  simply  whether  the  best  rent  that 
could  be  got  was  obtained,  but  also  whether  the  lease 
[  *391  ]  "was  granted  on  a  premium.  The  condition  in  the 
power  was  twofold  ;  first,  that  the  best  rent  should  be 
reserved  ;  and  secondly,  without  a  fine  or  premium.  That  implies 
that  no  fine  or  premium  shall  be  taken.  The  evidence  offered  was 
to  show  that  in  fact  the  best  rent  had  been  reserved.  Assuming 
that  to  be  so,  still  if  a  premium  was  taken  there  was  a  breach  of 
the  condition  in  the  leasing  power.  One  reason  for  the  condition 
in  these  powers,  that  no  premium  shall  be  taken,  was,  he  imagin- 
ed, to  provide  against  the  uncertainty  of  parol  evidence  in  the 
doubtful  question,  what  was  the  best  rent  that  could  be  got  when 
the  lease  was  granted,  which  in  the  case  of  old  leases  may  be  at 
a  very  distant  period.  If  any  premium  whatever  was  taken, 
that  seemed  to  him  a  breach  of  the  condition  in  the  power.  A 
power  to  lease  should  be  construed  strictly  and  rigorously,  because 
it  was  a  power  to  be  exercised  over  property  which,  upon  the  death 
of  the  donee,  belongs  to  another.  With  the  latter  observations  the 
writer  does  not  concur'.  It  does  not  appear  to  be  the  true  rule, 
but  the  prior  observations  appear  to  be  correct ;  you  are  to  re- 
serve the  best  rent  which  can  be  obtained,  without  taking  a  fine — 
that  interdicts  you  from  taking  a  fine.  No  one  doubts  that  100/. 
paid  by  a  lessee  to  a  lessor  exercising  such  a  power  would  avoid 
the  lease,  although  a  cloud  of  witnesses  should  prove  that  the  rent 
reserved  was  the  best  that  could  be  obtained.  In  a  case  like  that 
before  Lord  Redesdale,  the  expenditure  is  not  considered  in  the 
light  of  a  premium  ;  but  the  lessee  although  he  is  to  pay  the  best 
rent,  is  willing  to  improve  the  estate  which  he  is  to  enjoy.  It 
does  not  follow  that  he  would  pay  one  shilling  more  rent  though 
he  did  not  bind  himself  to  make  the  improvements. 

9.  In  Wright  v.  Smith, (A;)  a  lease  under  a  power  requiring  the 
best  rent  was  granted  at  a  rent  of  250/.,  and  the  jury  found  the 

(fc)  Esp.  Ca.  203. 


FINE — BEST  RENTS   RESERVED.  351 

property  was  at  the  date  of  the  lease  reasonably  worth 
400/.  per  annum:  a  verdict  was  found  against  *the  lease,  [  *392  ] 
on  the  ground,  as  expressed  by  the  jury,  that  the  best 
rent  whicli  could  have  been  fairly  obtained  had  not  been  reserved, 
but  that  there  was  no  frmid  or  collusion.  Mr.  Justice  Heath  gave 
the  defendant  leave  to  move  upon  this  special  finding,  as  he  doubt- 
ed whether  the  clause  did  not  apply  only  to  cases  where  there 
was  fraud  and  collusion  between  the  tenant  for  life  and  t|je  lessee, 
to  prejudice  him  in  remainder,  not  where  it  was  fairly  let ;  but 
the  Court  of  Exchequer,  after  argument,  properly  refused  to  dis- 
turb the  verdict. 

10.  In  Price  v.  Assheton,(0  in  a  suit  for  a  specific  perform- 
ance of  an  agreement  to  grant  a  lease  made  out  by  a  correspond- 
ence, the  intended  lessor  was  tenant  for  life,  with  a  power  to 
lease  for  thirty-one  years  at  the  most  improved  rent.  Upon  a 
motion  for  dissolving  an  injunction,  the  Lord  Chief  Baron  observ- 
ed, during  the  argument,  the  defendant  says  in  his  letter,  "  I 
should  not  object  to  grant  you  a  lease  at  a  reduced  rent,  not  tak- 
ing advantage  of  such  improvements  made  by  you  from  this  time." 
It  might  be  a  question,  whether  taking  the  rent  without  reference 
to  the  improvements  was  not  inconsistent  with  the  power.  If  it 
were  worth  the  tenant's  while  to  pay  rent  and  also  to  make  im- 
provements, it  shows  that  the  rent  taken  by  the  landlord  is  not 
(according  to  the  terras  of  the  power)  the  most  improved  rent. 
In  delivering  judgment,  he  observed.  But  then  it  is  said  that  the 
lease  agreed  to  be  granted  was  inconsistent  with  the  power  of 
leasing  in  the  lessor.  Now  that  power,  as  I  find  it  set  out  in  the 
answer,  is  a  power  to  lease  for  thirty-one  years,  but  the  intended 
lease  was  only  for  twenty-one  years,  therefore,  as  far  as  concerns 
the  duration  it  was  within  the  terms  of  the  power.  But  it  is  said, 
that  according  to  the  power,  the  best  improved  rent  is  to  be  re- 
served, while,  according  to  the  stipulations  in  tlie  agreement,  the 
rent  was  to  be  fixed  ]jy  valuers  at  a  fair  valuation  with  reference 
to  the  improvements  to  be  made,  and  the  rent  was 
•in  no  event  to  exceed  the  rent  paid  under  the  former  [  *393  ] 
lease.  Now,  if  at  the  time  of  valuation  the  new  rent 
hould  be  less  than  the  rent  originally  stipulated  to  be  paid,  then 

(0  1  You.  &  Coll.  82. 


352  SUGDEN   ON   POWERS. 

it  •would  not  be  the  best  improved  rent ;  luit  this  state  of  things 
must  dcj)end  upon  tlic  valuation.  This,  tlu'rclbrc,  is  not  an  argu- 
ment which  can  l)e  used  in  suj)port  of  the  motion  for  dissolving 
the  injunction.  IJut  (lien  anotlier  question  of  some  nicety  arises, 
namely,  whether,  althouu,h  money  was  to  be  laid  out  l)y  the  plain- 
till",  and  tlie  rent  to  be  estimated  l)y  the  valuers  witliout  reference 
to  the  money  so  to  be  laid  out,  that  is  within  the  terms  of  the 
power.  ^That  may  be  a  question  of  some  nicety  to  be  decided  on 
the  hearing  of  the  case  when  the  terms  of  the  power  arc  before 
the  Court.  Prima  facie  a  rent  so  reserved  is  not  an  improved 
rent ;  but  here  it  was  stipulated  that  the  improvements  should 
be  made  by  the  tenant  in  consideration  of  the  new  lease.  It  is 
dilhcult  therefore  to  say  whether  that  can  be  considered  as  an  in- 
fringement of  the  power. 

11.  In  Muskerry  v.  Chinnery,(w)  to  which  we  have  before  re- 
ferred, by  a  settlement  after  marriage  of  the  wife's  estate  it  was 
limited  to  the  husband  for  life,  remainder  to  the  wife  for  life,  re- 
mainder to  the  eldest  born  son  for  life,  remainder  to  his  sons  in 
tail  male,  with  like  remainder  to  the  second  son  and  his  sons,  &c., 
with  the  ultimate  remainder  in  fee  to  the  husband.  And  in  the 
settlement,  1.  Power  was  given  to  the  husband  from  time  to  time, 
and  at  all  times  during  his  life,  to  lease  or  demise  all  or  any  part 
of  the  estates  for  any  time  or  term  of  yeairs  or  lives,  and  with  or 
without  covenants  for  renewals,  and  in  case  of  the  determination 
of  all  or  any  of  the  aforesaid  lease  or  leases  respectively,  from 

time  to  time  to  make  new  or  other  leases  thereof  in  man- 
[  *394  ]  ner  aforesaid,  and  with  or  *without  any  fine  or  fines,  as 

he  should  think  fit.  By  an  indorsement  on  the  deed  a 
power  of  leasing  for  a  limited  term  in  possession  at  rack-rent  was 
given  to  the  sons.  Leases  were  granted  under  tlie  powers  for 
terms  of  909  years,  in  consideration  of  large  fines,  at  rents  and 
with  privileges  not  usual  in  husbandry  leases.  Upon  a  ease  direct- 
ed to  the  Court  of  C.  P.  in  Ireland,  they  certified  that  the  leases 
were  not  warranted  by  the  power.  Their  opinion  was  understood 
to  be  that  the  usual  restrictions  in  leasing  powers  must  be  implied 

(ni)  Lloy.  &  Goo.  temp.  Sugd.  185;  Appendix,  No.  18,  supra,  vol.  1,  p.  523. 
Decree  reversed,  but  afterwards  again  transmitted  to  Ireland,  7  Cla.  &  Fin.  1;  Mus- 
kerry V  Sheeliy,  2  Jebb  &  Sym.  300;  three  Judges  against  one  that  the  leases  were  in- 
valid; see  Clark  v.  Smith,  9  Cla.  &  Fin.  126. 


FINE   MAY   BE   TAKEN   UNDER   GENERAL   POWER.  353 

in  this  case,  and  that  the  leases  were  contrary  to  the  nature  of 
the  power.  The  case  was  decided  upon  another  point  in  the  Court 
of  Chancery,  but  the  Chancellor  was  of  opinion  that  fines  were 
authorized  to  be  taken  upon  original  leases,  and  the  Lord  Chief 
Baron  was  of  the  same  opinion,  in  which  the  Lord  Chief  Justice 
was  inclined  to  concur. 

The  first  point  made  was,  that  the  power  did  not  authorize  the 
receiving  any  fines,  except  upon  renewals  under  'covenants  in  pri- 
or kases  under  the  power.  The  power,  it  was  insisted,  only 
authorized  leases  for  any  term  of  lives  or  years,  at  any  rent  he 
thought  fit,  and  Avith  or  without  covenants  for  perpetual  renewal, 
either  at  a  pepper-corn  fine  or  for  value  ;  and  that  renewals  might 
be  granted  upon  taking  fines,  if  authorized  by  such  covenants, 
for  renewals.  The  Judges  were  of  opinion  that  a  fine  might  be 
taken  upon  an  original  lease  as  well  as  upon  a  renewed  lease — 
the  words  with  or  without  fines  overrode  all  the  sentence.  You 
may  make  leases  with  or  without  covenants  for  renewal,  (and 
afterwards  renew)  and  with  or  without  fines.  The  sentence  was 
interpreted  only  to  introduce  the  right  to  renew  under  the  cove- 
nants, and  it  was  to  lease  for  any  time,  at  any  rent,  with  or  with- 
out covenants  for  renewal,  and  with  or  without  fines.  The  latter 
words  could  not  be  confined  to  renewals.  The  power  was  to  the 
husband  onhj.  Why  should  he  grant  a  renewed  lease  upon  a  fine, 
and  not  an  original  one  ?  Such  a  construction  would 
only  render  it  *necessary  for  an  original  lease  to  be  [  *395  ] 
granted  for  a  short  period,  with  a  covenant  for  renewal 
on  a  fine,  and  then  a  fine  could  be  taken.  If  nothing  had  been 
said  about  fines,  yet  they  might  liave  been  taken  under  such  a 
power.  Was  anything  expressed  Avhich  excluded  the  right  to 
take  them  ?  Every  thing  was  intended  to  be  left  to  the  discre- 
tion of  the  donee — the  duration  of  the  term,  the  quantum  of  rent, 
the  amount  of  the  fine.  This  was  powerfully  shown  by  the  lim- 
ited power  of  leashig  giving  to  the  sons.  The  power  to  mortgage, 
and  the  unlimited  power  in  the  settlement  to  charge  the  estate 
for  the  younger  children,  which  would  have  enaljled  him  to  dis- 
pose of  the  whole  estate  in  their  favour,  also  aided  the  construc- 
tion that  the  leasing  power  was  not  more  unlimited  in  its  terms 
than  the  parties  intended ;  but  we  have  already  observed  upoa 
this  part  of  the  case. 

30* 


;]54  SUDGEN   ON   POWERS. 

12,  But  it  is  not  suflicicut  to  impeach  a  bona  fide  lease  without 
a  fine,  at  a  rent  whicli  the  Jury  find  a  fair  rent,  that  the  tenant  for 
life  had  olVers  of  hii^hcr  rents  from  other  persons,  against  whose 
responsibility  notlung  a{)prars.  And  wliere  the  transaction  is 
iair,  and  no  line  or  otiicr  collateral  consideration  was  taken  by 
the  tenant  for  life  leasing  under  the  power,  or  injurious  ]>artiality 
manifestly  shown  by  him  in  favour  of  the  i)articular  lessee,  there 
ought  to  be  something  extravagantly  wrong  in  the  bargain  to 
sot  it  aside  on  this  ground  ;  for  in  the  choice  of  a  tenant  there 
are  many  things  to  be  regarded  besides  the  mere  amount  of  the 
rent  oflcred.(/i) 

Vij.  In  the  Queensberry  case,  in  the  House  of  Lords,  Lord  El- 
don,  in  speaking  of  powers  to  lease  at  the  best  rent  observed. 
"■  There  is  but  one  criterion  which  our  Courts  always  attend  to  as 
a  leading  criterion  in  discussing  the  question,  whether  the  best 
rent  has  been  got  or  not ;  that  is,  whether  the  man  who  makes 
the  lease  has  got  as  much  for  others  as  he  has  for  himself ;  for  if 

he  has  got  more  for  himself  than  for  others,  that  is  a 
[  *396  ]  decisive  evidence  against  him.     *The  court  must  see 

that  there  is  a  reasonable  care  and  diligence  exerted  to 
get  such  rent  as,  care  and  diligence  being  exerted,  circumstances 
mark  out  as  the  rent  likely  to  be  obtained."(o) 

14.  Under  a  power  to  lease  for  any  term  not  exceeding  ninety- 
nine  years  from  the  date  of  executing  the  lease,  so  that  there 
should  be  reserved  to  be  payable  during  the  continuance  of  the 
term  the  best  rent  that  could  be  obtained  without  taking  any  fine, 
a  lease  was  granted  for  thirty  years  at  a  rent  of  270/.,  and  at  the 
same  time  another  lease  in  reversion  for  sixty-three  years  at  a  rent 
of  120/.,  and  the  last  lease  contained  a  covenant  to  rebuild,  it  was 
held  that  the  leases  were  void,  although  the  Jury  had  found  that, 
taking  into  consideration  the  covenants  to  rebuild,  the  rents  were 
the  best  that  could  be  obtained.  For  the  question  was,  whether 
they  were  the  most  beneficial  to  the  reversioner  ?  and  it  was  clear 
that  whatever  rent  was  reserved  should  be  reserved  during  the  con- 
tinuance of  the  term.(/?) 

15.  And  where  the  power  requires  the  true  and  ancient  rent,  it 

{n)  Doe  v.  Radclillc,  10  East,  278. 

(0)  MS.     See  1  Bligh,  427. 

[p)  Doe  V.  Harvey,  1  Barn.  &  Cress.  426;  3  Dowl.  &  Ry.  589. 


WHERE   LESSOR   MAY   COVENANT   TO   REPAIR.  355 

is  not  sufficient  that  it  is  reserved  to  the  remainderman,  but  it 
ouglit  also  to  be  reserved  to  the  lessor  himself;  and  therefore  if 
he  reserve  a  less  rent  to  himself  during  his  life,  and  after  his 
death  the  true  and  ancient  rent,  the  lease  is  not  good  ;(^q)  and  the 
rule  would  equally  apply  to  the  usual  povrer  to  lease  at  the  best 
rent.  (7') 

IG.  Where  the  power  prohibits  a  fme  from  being  taken,  or  even 
requires  the  best  rent,  it  has  been  doubted  in  practice  whether  a 
new  lease  granted  upon  the  surrender  of  an  old  one  at  an  in- 
creased rent  is  valid  ;  of  course  the  lease  would  be  void  if  the 
increased  was  not  the  proper  rent.  But  as  the  tenant  for  life  re- 
ceives an  immediate  addition  to  the  rent,  it  has  been 
argued  that  the  increased  rent  is  *cquivalcnt  to  taking  [  *39T  ] 
a  fine  at  the  expense  of  the  remainder-man,  for  it  is  as- 
sumed that  if  the  old  lease  had  been  permitted  to  run  out,  a  lar- 
ger rent  might  have  been  obtained  ;  and  of  course  if  a  fine  is 
prohibited,  the  taking  of  one  will  avoid  the  tease,  although  the 
best  rent  can  be  obtained.  But  there  is  no  weight  in  this  argu- 
ment, if  the  renewed  lease  really  do  comply  with  the  terms  of  the 
power.  The  lease  may,  as  we  have  seen,  be  renewed  at  anytime, 
and  the  donee  need  not  await  its  expiration  by  eflluxion  of  time, 
or  sooner  determination  by  forfeiture.  But  the  existence  of  a 
lease,  beneficial  to  tlie  lessee,  will  not  justify  the  grant  of  a  new 
one  at  a  less  rent  than  the  property  is  worth  at  the  time.(s) 

17.  Of  course  in  a  power  to  grant  building-leases,  the  term 
best  rent  must,  although  not  expressed,  be  understood  to  be  the 
best  rent  which  can  be  obtained  with  reference  to  the  gross  sum 
to  be  laid  out  by  the  tenant  in  building  or  improvements.  So  as 
in  ordinary  cases,  the  rent  must  be  regulated  upon  the  nature  of 
the  other  obligations  assumed  by  the  lessor  and  lessee  and  war- 
ranted by  the  power.  If  the  tenant  be  to  keep  the  premises  in 
repair,  the  rent  is  so  much  less ;  if  the  landlord  be  to  repair,  the 
rent  is  the  greater.  It  is  a  question  for  a  jury,  whether  taking 
into  consideration  the  repairs  to  be  made  by  the  landlord  or  ten- 
ant, the  rent  reserved  is  tlie  fair  one.(/) 

{q)  Mountjoy's  case,  per  C.  J.,  o  Rep.  G  a,  b. 

(r)  See  I  Burr.  121. 

(s)  Wright  V.  Smith,  5  Esp.  Ca.  203. 

(0  Per  Le  Blanc,  J.  12  East,  308,  309. 


o5G  SUGDEN   ON   POWERS. 

18.  Ill  a  late  caso,(//)  before  referred  to,  where  in  a  lease, 
under  a  power  l»y  a  tenant  for  life,  he  covenanted  in  every  year 
during-  his  life,  upon  the  request  of  the  lessee,  to  grant  a  new 
lease  upon  the  same  rents,  &c.,  as  in  the  first  lease,  it  was  argued 
that  the  covenant  for  renewal  avoided  the  lease  :  it  operated 
indirectly  upon  the  interest  of  the  reniaiuder-man,  though  it  only 
bound  the  tenant  for  life  directly.  The  lessee  would 
[  *398  ]  not  of  course  apply  for  a  renewal  unless  it  was  *for  his 
benefit,  and  the  remainder-man  loses  one  of  the  checks 
which  in  general  operate  in  his  favour  on  the  tenant  for  life,  to 
reserve  the  best  rent ;  for  the  tenant  for  life  may,  for  fear  of  an 
action  on  the  covenant,  be  induced  to  renew  at  less  than  the  best 
rent,  at  the  time  when  such  renewal  is  applied  for  ;  and  the 
difliculty  upon  the  remainder-man  of  proving  that  a  better  might 
then  liave  been  had  is  enhanced  in  a  greater  degree,  when  other 
uncertain  computations  arc  to  be  taken  into  the  account,  than  if 
the  question  were  confined  to  the  mere  amount  of  the  gross  rent 
reserved.  Lord  Ellenborough,  in  delivering  judgment,  said,  that 
as  to  the  covenant  for  renewal,  it  is  said  that  it  has  a  tendency  to 
induce  the  lessor  to  run  the  question  on  the  quantum  of  rent 
reserved  very  closely ;  for  if  he  renewed  at  the  end  of  twenty 
years  from  the  first  granting  of  the  lease,  the  remainder-man  might 
have  a  lease  fixed  on  him  for  twenty-one  years  from  that  time, 
reserving  less  than  the  best  rent  which  could  then  have  been 
reserved ;  but  the  answer  is,  that  if  the  fact  were  so,  the  lease 
would,  be  void,  and  the  remainder-man  might  bring  his  ejectment 
and  recover  the  premises. 

'19.  Where  a  contract  is  made  to  grant  a  lease  at  a  future  period, 
under  a  power  to  lease  in  possession  at  the  best  rent,  and  the 
donee  live  to  come  into  possession,  yet  the  question  as  to  the  rent 
is  whether  the  rent  agreed  upon  was  the  best  rent  at  the  time  the 
lease  is  to  commence. (a:) 

20.  Where  a  power  requiring  tlic  best  rent,  also  required  that 
no  power  should  be  f^iven  to  any  lessee  to  commit  waste,  and  that 
the  lease  should  contain  usual  covenants,  and  a  lease  was  granted 
by  which  the  lessor  covenanted  to  do  part  of  the  repairs,  and  in 
case  of  neglect  the  tenant  was  authorized  to  do  them,  and  deduct 

(u)  Doe  V.  Bettison,  12  East,  305. 

(z)  See  Bowell  v.  Dew,  1  Vou.  &  Coll.  C.  C.  346. 


WHERE   LESSOR   MAY   COVENANT   TO   REPAIR.  00 « 

the  expense  out  of  the  rent,  the  Jury  found  that  the  rent  was  the 
best  rent  and  that  tlie  covenants  were  usual  ones  : — It  was  con- 
tended— first,  that  the  lease  amounted  to  an  exemption 
from  puunishment  for  *permissive  waste,  which,  it  was  [  *399  ] 
said,  was  within  the  power — secondly,  that  tlie  covenant 
enabling  the  lessee  to  deduct  the  expenses  of  repairs  was  unusual 
and  contrary  to  the  power.  Mr.  Justice  Bayley  observed,  in 
answer  to  the  first  objection,  that  the  restriction  on  the  power 
of  leasing  was  only  that  the  lease  should  not  contain  any  clause 
whereby  any  power  should  be  given  to  the  lessee  to  commit  waste. 
Does  not,' he  asked,  the  argument  come  at  last  to  the  quantum  or 
sufficiency  of  the  rent  reserved  ?  If  the  tenant  be  to  keep  the 
premises  in  repair,  the  rent  is  so  much  less ;  if  the  landlord  be  to 
repair,  the  rent  is  the  greater.  It  was  a  question  for  the  Jury  at 
the  trial,  whether,  taking  into  consideration  the  repairs  to  be 
made  )»y  tlic  landlord,  the  rent  reserved  was  the  fair  rent.  In 
delivering  judgment.  Lord  Ellcnborough  observed,  that  as  to  the 
first  objection,  the  power  stipulates  against  any  clause  in  the  lease 
whereby  any  authority  shall  be  given  to  the  lessee  to  commit 
waste,  &c.,  and  the  answer  to  that  objection  is,  that  no  such 
power  or  authority  is  given  to  the  lessee,  nor  is  he  thereby  exempt- 
ed from  the  punishment  for  committing  waste  ;  for  the  burthen 
of  repair  in  the  mansion-house  is  thrown  by  the  lease  on  the  land- 
lord, and  it  was  incumbent  on  the  plaintiff's  counsel  to  have  shown, 
that  according  to  the  terms  of  the  power  no  such  burthen  coultl 
be  thrown  on  the  landlord ;  but  that  is  not  prohibited,  and  there- 
fore the  argument  falls  to  the  ground.  Next,  the  covenant  pro- 
vides, that  if  repair  should  be  wanted  on  the  roof  of  the  mansion, 
whicli  the  landlord  took  upon  himself,  and  he  did  not  repair  it, 
the  tenant  might  make  the  repair  and  deduct  the  charge  out  of 
the  rent  reserved  to  the  lessor.  What  oljjectiou  can  there  be  to 
provide  for  setting  off"  the  one  demand  against  the  other  ?(^) 

21.  Formerly  these  powers  required  the  ancient  or  usual  rent 
to  be  reserved,  ])ut  at  the  present  day  this  practice  is 
"very  properly  exploded. (1)     AVhere  such  a  term  is  [  •400  ] 
introduced,  the  better  opinion  is,  that  as  a  general  rule, 

(y)  Doc  V.  Hcttison,  12  East,  305. 

(I)  As  to  the  kind  of  evidence  of  the  ancient  rent  adinitteil  in  these  cases,  see  Roe 
V.  Riiwlins,  7  East,  279. 


358  SUGDEN   ON  POWERS. 

tlie  rent  reserved  at  the  time  of  the  creation  of  the  power,  where  a 
lease  was  then  in  being-,  or  hist  before  it,  where  no  lease  was  then 
in  being,  is  the  rent  to  which  the  power  must  be  taken  to  refer.(^) 
But  it  is  no  objection  tliat  more  than  the  ancient  rent  is  reserv- 
ed,(r/)  nor  that  heriots,  or  other  casual  or  accidental  services, 
which  have  been  usually  rendered,  are  not  reserved  by  the  lease 
under  the  power,  (i)  But  if  the  ancient  reservations  are  required 
that  goes  further  than  the  rent,  and  if  heriots  were  formerly  reserv- 
ed they  must  be  secured.  But  a  difference  in  the  form  of  the 
reservation  Avill  not  vitiate  the  laese.(c) 

22.  It  should  seem  that  where  the  usual  rents  are  required  to 
be  reserved,  and  a  certain  sum  was  formerly  paid,  with  a  covenant 
by  tlie  lessee  to  pay  all  the  taxes,  a  reservation  of  the  like  rent, 
without  a  similar  covenant,  would  be  a  fraud  on  the  power,  for 
the  new  rent  would  only  be  nominally  tlie  ancient  rent,  as  it  would 
be  subject  to  a  deduction  for  the  land  tax  and  other  taxes,  which 
would  in  effect  reduce  the  rent  below  the  sum  anciently  ren- 
dered, (i/) 

23.  In  Goodtitle  v.  Funucan,(e)  where  the  power  required 
there  should  be  reserved  so  much,  or  as  great  yearly  rents  as  or 
more  than  now  is  or  are  paid,  but  was  silent  as  to  covenants,  it 

was  insisted  that  the  covenants  by  the  lessor  lessened 
[  *401  ]  *tho  value  of  the  rent  reserved.     Lord  Mansfield  said 

the  power  made  no  mention  of  covenants.  The  ground, 
therefore,  must  be  that  the  present  covenants  loere  a  fraud  on  the 
power,  by  lessening  the  value  of  the  reservation  ;  but  on  consider- 
ing them  fully,  it  appeared  that  what  was  thrown  on  the  landlord 
was  compensated  by  what  was  paid  by  the  tenant.  An  ol)jeetion 
of  this  nature  goes  to  its  not  being  the  usual  and  accustomed  rent. 

(z)  See  Morrice  v.  Antrobus,  Hard.  325;  3  Cha.  Rep.  C0-G8,  accordingly  per  Iloh, 
C.  J.;  But  see  ib.  73,  contra  per  Lord  Ch.  Cowper;  and  see  Right  v.  Thomas,  3  Burr. 
1441,  1  Bhvckst.  446;  Doe  v.  Creed,  4  Mau.  &  Selw.  371;  Due  v.  Lock,  2  Add.  & 
Ell.  705. 

(a)  See  3  Cha.  Rep.  78. 

(Jb)  Baugh  V.  Haynes,  Cro.  Jac.  76;  Mo.  759;  Co.  Lit.  44  b;  Coventry  v.  Coventry, 
1  Com.  312. 

(c)  Doe  V.  Lock,  2  Add.  &  Ell.  705,  infra. 

((/)  See  Earl  of  Cardigan  v.  Montagu,  App.  No.  13  (8);  Goodtitle  v.  Funucan, 
Dougl.  565;  Doe  v.  Wilson,  5  Barn.  &  Aid.  303. 

(e)  Dougl.  565. 


USUAL   OR  MOST  EENT.  359 

But  where  the  clauses  were  in  the  former  leases,  it  is  the  usual 
and  accustomed  rent,  reserved  in  the  usual  and  accustomed  man- 
ner. (/)  If  the  ancient  rent  is  required  to  be  reserved  in  as 
.  beneficial  a  manner  as  liefore,  no  especial  direction  is  neccssary 
for  the  insertion,  for  example,  of  a  power  of  re-entry,  which  was 
in  the  former  leases,  for  it  must  be  reserved  as  theretofore. (g*) 

24.  Where  a  power  was  given  by  a  will  to  a  tenant  for  life,  to 
lease  landed  estates  for  twenty-one  years,  at  the  most  rent  that 
could  be  got,  and  houses  and  ground  in  Middlesex  and  London, 
for  any  term  of  years  not  exceeding  sixty-one,  at  the  usual  or 
other  the  most  rent  that  could  be  got  for  the  same,  and  at  the 
date  of  the  will  the  London  houses  were  in  lease  for  forty-one 
years,  at  a  rent  of  6/.,  for  which  a  fine  had  been  paid,  the  Court 
of  King's  Bench  held  that  the  Middlesex  and  London  property 
might  be  demised  at  the  old  rents,  taking  a  fine  ;  usual  was  con- 
sidered as  contrasted  to  most.  If  the  property  in  London  had 
been  situate  in  a  ruinous  part  of  the  town,  in  such  a  case,  the 
tenant  for  life  might  not  have  been  able  to  get  the  usual  rent,  and 
then  he  was  to  get  the  most.  (A) 

25.  The  word  rent^  in  powers  of  leasing,  is  with  great  propriety 
construed  to  mean  not  money  merely,  but  any  return  or  equiva- 
lent adapted  to  the  nature  of  tlie  subject  demised :  therefore  upon 
a  lease  of  mines,  a  due  proportion  of  the  produce  may 

be  reserved  as  a  tender  in  lieu  of  money,  *although  the  [  *402  ] 
power  requires  a  "  rent"  generally  to  be  reserved. (i) 


26.  "When  it  is  ascertained  that  the  proper  quantum  of  rent  is 
payable,  the  next  question  is,  whether  the  form  of  the  reservation 
be  proper. 

27.  Wliere  from  the  quantity  and  nature  of  the  property  de- 
mised, it  is  impossible  to  ascertain  whether  the  rent  reserved  is 
the  best  rent,  the  execution  of  the  power  cannot  be  sustained,  as 
where  a  donee  of  a  power  to  lease  at  rack-rent  leased  an  honour 
and  sixteen  manors  and  other  estates  with  a  park  and  deer  there- 

(/)  See  5  Barn.  &  Aid.  393,  894. 

{g)  See  Doe  v.  Smith,  D.  P.  infra. 

{h)  Doe  V.  Creed,  4  Mau.  &  Selw.  371. 

(t)  CnmpMl  V.  Leach,  Arabl.  740;  ■Rfifsett's  case  cited,  ib.  74f<. 


360  SUGDEN   ON   POWERS. 

in,  Ity  one  lease  at  600/.  a  year,  the  lease  was  deemed  invalid,  by 
reason  of  the  general  extensive,  casnal,  and  uncertain  natures  and 
values  of  tlie  greater  ])nrt  at  least  of  the  premises,  and  tlie  great 
difficulty,  if  not  utter  impossibility,  arising  from  thence  of  forming 
any  judgment  whether  tlie  rent  tliereby  reserved  was  the  best  rent 
that  could  have  ))een  obtained. (A:) 
0>  28j^The  bond  fide  reservation  of  rent  for  the  enjoyment  of  the 
(estate  prior  to  the  lease,  as  where  the  lessee  is  in  possession,  and 
the  lease  is  granted  in  a  broken  half  year,  does  not  vitiate  the 
lease  ;(/)  l)ut  a  rent  must  be  reserved  for  the  whole  of  the  terra. 

Therefore  where  the  power  required  the  best  and  most  approved 

yearly  rent  to  be  reserved,  and  the  lease  was  dated  the  14th 

September,  1809,  and  was  for  twenty-one  years  from  the  day  of 

the  date  of  the  lease,  payable  by  two  even  half-yearly  payments 

on  the  29th  of  September  and  25th  of  March,  the  first  payment 

to  be  made  on  the  2oth  day  of  March  then  next,  the  lease  was 

held  void  ;  because,  as  the  rent  was  made  payable  on  the  25th  of 

March  and  the  29th  of  Septembei-,  and  the  term  of  the 

[  *403  ]  lease  would  expire  on  the  *14th  of  September,  there 

would  be  no  rent  payable  under  it  from  the  25th  of 

March  preceding  the  expiration  of  the  term.(m)    But  there,  there 

was  a  clear  loss  of  one  half  year's  rent ;  not  twenty-one  years' 

{»    rent,  but  only  twenty  and  a  half  was  reserved,  (w) 

29.  Where  the  ttsual  or  ancient  rent  is  required,  generally  it 
must  be  reserved  in  the  way  it  has  commonly  been ;  if  gold  has 
been  usually  reserved,  silver  cannot  be  made  payable  in  lieu  of  it ; 
if  it  were  commonly  paid  at  four  days,  a  reservation  at  one,  two. 
or  three  days  would  he  void:  but  where,  by  the  restraining 
statute  13  Eliz.  c.  10,  s.  3,  leases  were  made  void  unless  the 
accustomed  yearly  rent,  or  more,  should  be  "  reserved  and  paya- 
ble yearly"  during  the  term,  it  Avas  held,  that  a  reservation  to  be 
paid  half-yearly,  where  it  was  payable  quarterly  before,  was  good; 
for  it  was  sufficient  if  the  accustomed  rent  be  reserved  yearly  at 

(fe)  See  Earl  of  Cardigan  v.  Montagu,  App.  No.  13  (2).  Note,  there  was  another 
objection  to  the  lease. 

(0  Isherwood  v.  Oldknow,  3  Mau.  &  Sel.  382.     S.  C.  MS. 

(771)  Doe  d.  Wilmot  t.  GifiFard,  B.  R.  22  Feb.  1810,  MS.;  5  Barn.  &  Aid.  371;  see 
Doe  V.  ^VilsoD,  5  Barn.  &  Aid.  3G3;  Fi-yer  v.  Coombs,  11  Adol.  &  Ell.  403. 

(n)  Doe  V.  Rutland,  2  Mees,  &  Wels.  660;  10  Cla.  &  Fin.  419;  vide  infra.' 


OP   THE  TIME   OF   RESERVATION.  361 

one  time,  for  the  words  of  the  act  are,  "  whereupon  the  accustom- 
ed yearly  rent  or  more  shall  be  reserved ;"  and  therefore,  if 
the  rent  be  yearly  reserved,  the  statute  is  satisfied  by  reason  of 
this  word  y early. (p)  So  that,  although  the  lease  was  made  void 
unless  the  accustomed  yearly  rent  or  more  should  be  reserved  and 
payable  yearly,  yet  as  that  authorized  a  yearly  payment  in  one 
sum,  it  was  assumed  to  be  clear,  and  was  so  decided,  that  a  reser- 
vation half-yearly  was  valid  ;  and  therefore,  if  a  power  rcf^uire 
the  yearly  accustomed  rent  to  be  reserved,  the  rent  may  be  made 
payable  at  one  time,  or  at  several  periods. (/?) 

30.  In  the  case  of  Doe  v.  Lock((7)  the  power  required  the 
ancient  rent  and  reservations  to  be  reserved.  The  old  lease 
reserved  the  rent  half-yearly,  the  lease  under  the  power 
'quarterly ;  and  although  it  was  unnecessary  to  decide  [  *404  ] 
the  point,  the  Court  discussed  it  at  great  length.  They 
observed,  that  on  a  quarterly  reservation,  if  the  tenant  for  life 
died  in  the  first  portion  of  the  half  year,  the  remainder-man  would 
receive  both  the  first  and  second  quarter's  rent  of  the  half  year, 
and  would  therefore  be  in  the  same  situation  as  if  the  rent  had 
))een  reserved  half-yearly  ;  but  if  the  tenant  for  life  died  in  the 
second  quarter  of  the  half  year,  the  tenant  for  life  would  receive 
the  first  quarter,  and  the  remainder-man  only  the  second  quarter  ; 
and  he  would  consequently  be  in  a  worse  situation  than  if  the  rent 
had  been  reserved  half-yearly.  This,  however,  was  only  a  contin- 
gency, and  might  or  might  not  happen  ;  and  it  was  to  be  seen 
whether  that  would  avoid  the  lease.  After  citing  Mountjoy's 
case,  the  Court  observed  that  if  this  decision  were  correct, 
it  seemed  diflficult  to  say  that  a  lease  is  void  for  reserving  the  rent 
at  four  days  instead  of  two  ;  the  new  lease  need  not  be  a  fac- 
simile of  the  old  one  ;  all  that  is  to  be  done  is  to  see  that  the  re- 
mainder-man is  not  prejudiced.  And  there  could  be  no  doubt  but 
a  rent  payal)le  at  four  feasts  was,  upon  the  whole  term  created, 
more  beneficial  than  if  payable  at  two  feasts,  though  there  is  a 
possibility  that  as  to  one  quarter  the  remainder-man  may  be  pre- 
judiced ;  but  that  is  a  contingency ;  and  even  if  it  does  happen, 
there  is  the  benefit  of  the  quarterly  instead  of  the  half-yearly 

(o)  Mountjoy's  case,  5  Rep.  3  b.  6  a. 

(p)  See  Campbell  v.  Leach,  Ambl.  740;  Earl  of  Cardigan  v.  Montagu,  App.  No.  13. 

(9)  12  Adol.  &  Ell.  705. 

Vol.  II.  31 


362  SUGDEN   ON   POWERS. 

payments  during  the  rest  of  the  term.  After  examining  the  ati- 
f/iorilies  to  show  what  cfTeet  has  l)cbn  given  to  tlic  increasing  the 
number  of  rent  days,  the  Court  concluded  by  observing  that  it 
was  very  difficult  to  come  to  a  conclusion  on  this  part  of  the 
case. 

31.  Where  tlie  rent  is  required  to  be  reserved  at  particular 
days,  it  must  of  course  be  reserved  accordingly  ;  but  where  mere- 
ly the  best  yearly  rent  is  required  to  be  reserved,  it  may  be  made 
payable  quarterly,  or  half-y early. (r)  Even  where  the 
[  *405  ]  i)0wer  requires  there  to  be  reserved  and  made  *payable 
yearly,  the  usual  and  accustomed  yearly  rents,  it  autho- 
rizes the  reservation  in  portions  at  the  day^  on  which  the  rents 
have  been  usually  reserved.  This,  we  have  seen,  was  decided  in 
Mountjoy's  case.  In  the  recent  case  of  Doe  v.  Wilson,  which 
arose  nj)on  a  power  in  a  ])rivatc  act  of  pai-liament,  the  same  words 
were  introduced  into  the  power  ;  and  although  the  statute  which 
created  the  power  in  the  former  case  was  incorrectly  quoted 
as  not  saying  (which  it  did)  that  the  rent  should  be  payable  year- 
ly, but  only  that  the  accustomed  yearly  rent  should  be  reserved ; 
yet  the  Court,  without  hearing  the  defence,  decided  that  a  half- 
yearly  reservation  was  good.  The  ancient  rent  had  been  so 
reserved  ;  but  that,  as  we  have  seen  in  Mountjoy's  case,  is  not  ma- 
terial, so  that  in  such  a  case  the  rent  may  it  seems  be  reserved 
half-yearly  or  quarterly.  In  Doe  v.  Wilson(s)  the  Court  ob- 
served, that  it  was  admitted,  that  if  the  words  of  the  power  had 
been  "  so  that  there  be  reserved  and  made  payable  during  the 
continuance  thereof,  the  usual  and  accustomed  yearly  rent,"  with- 
out the  word  "  yearly"  immediately  following  the  word  "  paya- 
ble," a  rent  reserved  half-yearly  would  have  been  sufficient ;  that 
is,  that  a  payment  by  portions  at  the  end  of  each  half-year,  or  at 
the  end  of  each  quarter  of  the  year,  do^s  not  prevent  the  rent 
from  being,  in  the  common  understanding  of  mankind,  and 
in  common  parlance,  a  yearly  rent.  The  Court  could  not  see 
any  reason  why  the  words  "  payable  during  the  continuance  there- 
of "  should  make  any  difference  ;  it  could  not  suppose  the  legisla- 

(r)  Campbell  v.  Leach,  Ambl.  740;  6  Rep.  38  a.  See  Earl  of  Cardigan  v.  Mon- 
tagu, App.  No.  13. 

(s)  5  Barn.  &  Aid.  303;  and  see  Doe  v.  Rutland,  2  Mees.  &  Wela.  661;  and  5 
Mees.  &  WelSi  696;  Fryer  v.  Coombs,  11  Adol.  &  Ell.  403. 


OF  THE  TIME   OF  RESEEVATION.  363 

lature  intended  in  this  case  to  make  the  rent  payable  only  once  a 
year,  which  certainly  is  unusiml,  and  not  beneficial  to  the  landlord. 
To  adopt  the  construction  contended  for  would  be  to  suppose  that 
the  legislature  intended  that  the  leases  to  l)e  granted  under  the 
Act  of  Parliament  should  be  different  in  their  form  and  effect 
from  ordinary  leases  of  lands  and  tenements  granted  at 
beneficial  rents :  the  ordinary  *reservation  of  rent  in  [  *406  ] 
leases  is  "  yielding  and  paying  yearly  and  every  year." 
In  this  case  the  words  are  yearly,  during  the  continuance  thereof, 
the  usual  and  accustomed  yearly  rent,  which  means  the  yearly  rent 
of  so  many  pounds  by  so  many  half-yearly  or  quarterly  payments 
in  the  year,  and  they  ought  to  construe  these  words  "  payable 
yearly"  with  reference  to  the  common  language  of  leases,  which 
was  the  subject  respecting  which  the  parties  were  speaking  in  the 
clause  before  them.  The  words  "made  payable  yearly"  were 
considered  the  same  as  if  the  words  had  been  "  payable  every 
year."  '  In  common  parlance  the  word  yearly  in  such  powers 
means  not  a  payment  of  rent  once  a  year,  but  that  the  same  is  to 
be  paid  in  or  during  every  year.  In  one  sense  a  rent  reserved 
half-yearly  is  payable  yearly,  because  it  is  payable  during  the 
year. 

32.  In  the  prior  case  of  Cardigan  v.  Montagu, (^)  where 
the  words  were  very  powerful,  the  objection  was  not  taken  ;  the 
point  no  doubt  was  considered  at  rest. 

33.  A  reservation  of  the  rent  before  the  usual  day  of  payment 
is  said  to  be  valid,  because  payment  before  the  day  is  payment  at 
the  day  ;(m)  l)ut  this  would  not  be  valid  where  it  gave  a  benefit 
to  the  tenant  for  life  at  the  expense  of  the  remainder-man.  And 
it  seems  clear  that  the  rent  cannot  be  reserved  after  the  day  ap- 
pointed, (.r) 

34.  In  Doe  v.  Wilson(//)   where  the  power  was  to  lease  for 
*  twenty-one  years,  or  any  term  of  years  determinable  upon  three 

lives,  "  so  as  upon  all  and  every  such  lease  and  leases  there 
be  reserved  and  made  payaltlc  yearly  during  the  continuance 
thereof  the  usual  and  accustomed  yearly  rents,  boons,  and  services 

(0  App.  No  13. 

(u)  See  2  Lord  Raym.  1108. 

(x)  Ludlow  V.  Beckwith,  Al.  90. 

(y)  5  Barn.  &.  Aid.  303,  Fryer  v.  Coombs,  11  Adol.  &  Ell.  403. 


364  SUGDEN   ON   POWERS. 

for  the  same,"  and  the  lease  was  dated  from  the  Gth  of  January 
1785,  for  ninety-nine  years,  at  a  i"€nt  payable  at  Lady-day  and 

Michaelmas  in  every  year,  and  a  similar  lease  had  been 
[  *40T  ]  granted  before  the  *crcation  of  the  power,  it  was  held 

that  the  lease  was  valid.  The  Court  said  that  the  oIk 
jection  was,  that  the  rent  being  reserved  hall-yearly,  the  hrst  pay- 
ment was  to  take  place  at  a  period  less  than  half  a  year  distant 
from  the  day  of  the  demise,  and  in  su))i)ort  of  that  objection  the 
case  of  Doe  v.  Gifl'ard  was  cited  ;(c)  that  case,  however,  is  very 
distinguishable  from  the  present.  In  tliat  case  the  power  was  to 
lease  at  tlie  best  and  most  im})rovcd  yearly  rent  that  could  be  ol)- 
tained.  The  power  under  which  this  lease  was  granted  requires 
that  there  be  reserved  the  usual  and  accustomed  yearly  rent. 
Now,  as  far  as  the  Court  had  any  evidence  what  the  usual  and  ac- 
customed yearly  rent  was,  it  appears  to  have  been  a  yearly  rent 
payable  at  Lady-day  and  Michaelmas.  The  Court  therefore  was 
of  opinion  that  a  rent  })ayable  at  those  days,  although  the  right 
to  demand  it  arose  in  less  than  half  a  year,  was  a  usual  and 
accustomed  rent  within  the  meaning  of  those  words  in  the  condi- 
tion contained  in  the  leasing  power.  Indeed,  when  they  consid- 
ered that  this  was  a  lease  for  lives  granted  upon  the  surrender  of 
another  lease,  they  could  not  help  seeing  that  it  was  in  efiect  an 
extension  of  time  upon  fresh  terms  ;  and  where  the  time  only  is 
extended,  it  is  most  reasonable  that  the  day  of  the  payment  of  the 
rent  should  continue  to  be  the  same,  aftd  should  not  vary  accord- 
ing to  the  day  on  which  the  new  lease  may  happen  to  be  granted. 
35.  And  where  the  power  required  the  rent  to  be  reserved  by 
half-yearly  payments,  a  lease  reserving  at  the  feast  of  St.  Philip 
and  St.  James  (1st  May)  and  St.  Michael  (29th  Se})tember)  was 
held  void,  because  the  half-yearly  payments  ought  to  have  been 
on  several  days  of  payment,  and  the  rent  divided  as  near  as  may 
be  into  two  equal  half-yearly  payments;  which  this  did  not,  one 
interval  being  151,  and  the  other  214  days,  though  the  custom  of 
the  country  might  make  a  different  division.     The  tenant  for  life 

is  not  to  throw  on  the  remainder-man,  without  his  sanc- 
[  *408  ]  tion,  the  *uncertainty  of  the  chances  which  may  turn 

out  to  his  prejudice. (ft) 

(2)  Supra  pi.  28. 

(tf)  Doe  V.  Morse,  4  Tyrw.  185;  2  Crompt.  &  Mees.  247. 


OF  THE  TIME   OF  RESERVATION.  365 

36.. Some  observations  were  thrown  out  in  this  case  against  the 
validity  of  the  lease,  on  the  ground  that  the  rent  was  reserved 
too  soon,  so  that  the  tenant  for  life  might  thereby  obtain  a  year's 
rent  for  less  than  a  year's  occupation.  But  in  a  later  case, (6) 
where  the  power  required  there  to  be  reserved  the  best  improved 
yearly  rent,  Ac,  and  the  rent  was  reserved  half-yearly,  and  the 
last  half-year's  rent  was  made  payable  in  August,  although  the 
year  did  not  expire  until  Michaelmas  ;  the  reservation  was  held 
to  be  valid.  The  Court  thought  there  was  no  pretence  for  saying 
that  there  was  any  object  to  defeat  the  remainder-man's  claim ; 
on  the  contrary,  the  reservation  of  the  last  half-year's  rent,  before 
the  complete  expiration  of  the  year,  is  a  matter  of  prudence  and 
caution,  and  is,  in  general,  for  the  benefit  of  the  lessor,  whoever 
he  may  be.  It  could  only  be  detrimental  to  the  remainder-man 
on  the  supposition  of  the  tenant  for  life  dying  after  the  day  in 
which  tlic  last  half-year's  rent  is  reserved,  and  before  the  expira- 
tion of  the  term ;  a  supposition  very  highly  improbable.  The 
manifest  intention  of  the  testator  was,  that  the  rent  should  be 
apportioned  in  twenty-one  yearly  payments ;  there  was  no  direc- 
tion further  ;  it  might  be  paid  quarterly,  half-yearly,  or  yearly. 
There  being,  therefore,  no  direction  on  the  subject,  it  would  be 
quite  sufficient  to  make  it  payal^le  yearly,  within  each  of  the 
twenty-one  years.  But  this  was  reserved  in  the  Exchequer  Cham- 
ber, (c)  The  Court  did  not  think  that  the  last  payment  could  be 
properly  called  a  fine  or  increase ;  but  whether  it  did  not  cause  a 
part  of  the  term  to  be  exempt  from  rent,  so  that  the  rent  could 
not  be  said  to  be  made  payable  during  the  continuance  of  the 
lease,  was  a  much  graver  question.  They  considered 
Isherwood  v.  Oldknow  ^as  a  peculiar  case,  and  that  yon  [  *409  j 
cannot  remove  the  inconvenience  of  not  being  able  to 
distrain  for  the  last  half-year's  rent,  by  the  risk  of  placing  in  the 
power  of  the  tenant  for  life  a  considerable  sum  of  money  which 
properly  belongs  to  the  reversioner  ;  and  it  would  follow  from  the 
contrary  doctrine,  that  rent  might  be  reserved  beforehand.  This 
last  determination  was,  with  considerable  difference  of  opinion, 
reversed  in  the  l£ouse  of  Lords,  and  the  lease  held  good.(</) 

(6)  Doe  V.  Rutland,  2  Mees.  &  Wels.  G61. 

(c)  Rutland  v.  Doe,  5  Mees.  &  Wcls.  088. 

(d)  Rutland  v.  Doe,  12  Mees.  &  Wels.  355;  10  Cla.  &  Fin.  419. 

31' 


SH6  SUGDEN   ON   POWERS. 

ill.  In  these  cases  a  diftcrcnce  of  words  is  not  material ;  .thero- 
fore  a  reservation  ofei^ht  bushels  of  grain  in  lieu  of  a  quarter,  is 
good,  because  it  is  all  one  (juality,  value  and  nature. (e) 

38.  But* strictness  on  this  head  has  been  carried  so  far,  that  it 
has  been  considered  that  two  several  farms  not  usually  let  togeth- 
er, could  not  be  joined  in  one  demise  with  a  reservation  of  one 
and  the  same  rent ;  nor  a  parcel  of  a  farm  rendering  rent  pro 
rata.(f}  The  questions  have  generally  arisen  upon  leases  under 
the  statutes  by  ecclesiastical  persons,  tenants  in  tail,  and  husbands 
seised  jure  uxoris ;  and  notwithstanding  the  cases  in  the  books,  a 
lease  of  part,  at  a  rent  pro  rata,  was  considered  as  valid  by  very 
able  lawyers.  And  the  doubt  to  the  contrary  has,  so  far  as  it 
relates  to  ecclesiastical  leases,  been  removed  ))y  a  late  act  of 
Parliament,(^)  which  act,  very  unaccountably,  does  not  remove 
the  doul)t  as  to  leases  by  tenants  in  tail,  or  husbands  seised  jure 
uxoris,  nor  does  it  validate  leases  by  ecclesiastical  persons  of  two 
or  more  farms  together,  which  have  been  usually  let  separately. 

39.  The  point  upon  a  private  power  arose  in  thd  late  case  of 
Doe  V.  Wilson, (/<)  and  the  Court  held  the  apportionment  valid. 

The  Court  said,  the  question  was  wlietlier  or  not  it  is 
[  *410  ]  'competent  to  the  owner  of  a  cotisiderable  estate  to 

make  any  improvement  or  alteration  in  the  mode  of 
disposing  of  that  estate  ?  If  he  cannot  divide  a  farm,  but  is  bound 
to  let  it  altogether  as  it  formerly  was,  improvement  must  in  many 
cases  be  utterly  prevented,"  and  the  remainder-man  be  deprived  of 
the  benefit.  Independently  of  authority,  they  sliould  have  thought 
that  that  which  was  for  the  benefit  of  the  estate  might  be  lawfully 
done,  and  that  an  apportionment  of  rent  might  be  made  ;  and  that 
the  land  might  be  subdivided,  provided  care  was  taken  to  appor- 
tion for  the  parts  of  the  farm  so  divided  as  much  rent  as  had  been 
reserved  in  respect  of  them  in  the  lease  comprising  the  whole. 
Lord  Mountjoy's  case  had  been  cited  upon  this  point.  The  doc- 
trine there  laid  down  upon  this  subject,  however,  was  not  the 
point  which  the  Court  there  decided ;  and  the  very  learned  person 
in  whose  report  that  doctrine  is  found,  had,  in  his  commentary  on 

(c)  Mountjoy's  case,  5  Rep.  3  b.     See  3  Cha.  Rep.  75,  1  Burr.  121. 
(/)  5  Rep.  5  b;  3  Cha.  Rep.  75;  Smith  v.  Trinder,  Cro.  Car.  22. 
{g)  39  &  40  Geo.  3,  c.  41. 
{h)  6  Barn.  &  Aid.  363. 


OUT   OF   WHAT  RENT   IS   TO   ISSUE.  367 

Littleton,  cxpres^sly  laid  it  down  as  law  that  there  may  be  a  leas- 
ing of  part,  reserving  a  rent  bearing  the  same  proportion  to  the 
former  rent  as  the  part  leased  bore  to  the  whole  land.  He  says, 
'•  If  tenant  in  tail  let  part  of  the  land  accustomably  letten,  and 
reserve  a  rent  pro  rata  or  more,  this  is  good,  for  that  is  in 
substance  the  accustomable  rent ;" — Co.  Litt.  44  b ;  and  Lord 
Mountjoy's  case  is  referred  to  in  the  sentence  immediately  pre- 
ceding. The  Court  was  of  opinion,  that  the  law  so  laid  down  by 
Lord  Coke  was  consonant  to  reason,  and  that  it  was  competent  to 
lease  a  part,  reserving  a  true  and  fit  proportion  of  that  rent  which 
had  formerly  been  reserved.  The  case  of  Smith  v.  Trinder  was 
an  authority  upon  that  point.  It  was  true  that  the  39  k  40  Geo. 
3,  c.  41,  after  reciting  that  doubts  had  arisen  whether  ecclesias- 
tical persons  could  lawfully  grant  separate  leases  of  parts  of  lands 
usually  demised  by  one  lease  and  under  one  rent,  enabled  them  so 
to  do,  but  they  were  not  necessarily  to  infer  from  tlience  that 
those  doubts  w'ere  well  founded.  Acts  of  Parliament  for  the  pur- 
pose of  removing  doubts  are  very  beneficial,  because 
they  prevent  *that  expense  of  litigation  which  otherwise  [  *411  ] 
must  take  place  in  order  to  have  such  doubts  resolved. 
For  these  reasons  this  was  held  to  be  a  good  and  valid  lease. 

40.  It  is  clear,  that  the  mere  circumstance  of  the  rent  being  re- 
served out  of  the  land,  and  recent  improvements  on  it  by  building, 
will  not  vitiate  the  lease,  although,  as  it  has  been  argued,  part  of 
the  rent  issues  out  of  the  new  building. (i)  To  prevent  any 
doubt  on  these  points,  where  powers  are  given  to  lease  at  the  an- 
cient rent,  it  should  expressly  be  declared  that  leases  may  be  made 
of  part,  at  rents  pro  rata,  and  tliat  lands  usually  demised  by  sev- 
eral leases  at  several  rents  may  be  demised  by  one  leas^  at  the 
aggregate  of  the  old  rents. 

41.  In  the  case  of  Doe  v.  Lock, (A;)  a  power  of  leasing  was 
given  by  a  will  to  the  testator's  wife,  to  wliom  the  estates  were 
given  for  life  in  the  following  form :  To  lease  the  London  houses, 
(fee,  for  twenty-one  years  in  possession  ;  and  to  lease  the  estates 
in  the  manor  of  A.  for  ninety-nine  years,  determinable  on  one, 
two,  or  three  lives  in  possession,  reversion,  or  remainder,  of  such 
part  as  then  was  or  had  been  anciently  demised  for  one,  two,  or 

(t)  Read  V.  Nashe.  1  Leo,  14 7 ;  Bridg.  by  Ban.  607. 
{k)  2  Adol.  &  Ell.  705. 


3G8  SUGDEN   ON   POWERS. 

three  lives  in  possession  or  reversion,  '"  so  as  the  ancient  and  ac- 
customed yearly  rent  and  reservations  be  thereby  reserved;"  and 
to  lease  the  farms  in  the  })arish  of  A.  for  twenty-one  years  at 
rack-rent,  and  so  as  the  tenants  were  not  dispunishable  of  waste  ; 
all  such  leases  to  be  made  and  granted  in  the  same  manner  and 
form,  and  with  and  under  such  and  the  like  reservations,  restric- 
tions, covenants,  conditions,  and  aj!;rceraents,  as  are  usually  and 
customarily  contained  in  leases  of  the  like  kind  in  the  several 
parishes  and  places  where  the  same  premises  arc  situated.  A 
lease  was  granted  at  the  ancient  rent  of  land  in  the  manor,  ex- 
cepting all  timber  trees,  bodies  of  pollard  and  other  trees,  with 

liberty  to  the  lessor,  &c.,  to  fell  and  carry  the  same 
[  *412  ]  away.     *In  the  only  old  lease  jiroduced  of  the  same 

premises,  the  exception  was  of  all  timber  trees,  and 
trees  likely  to  prove  timber,  without  more.  In  leases  of  the  same 
kind  in  the  same  parish,  the  exceptions  of  timber  very  much  va- 
ried, so  that  it  was  contended  there  was  no  usual  reservation. 
The  Court  held  that  these  leases  were  admissible  in  evidence,  but 
that  they  only  applied  to  the  second  set  of  provisions,  and  could 
not  affect  the  first  part,  which  required  the  ancient  rent  and 
reservations,  because  as  to  these  it  is  only  the  rent  and  reserva- 
tions of  the  particular  power  which  are  to  be  attended  to.  The 
Court  then  held  that  what  related  to  the  wood  was  not  a  reserva- 
tion but  an  exception,  and  therefore,  of  course,  it  was  not  requir- 
ed by  the  first  set  of  provisions,  which  only  required  the  ancient 
rents  and  reservations.  But  still  the  court  held  the  lease  bad, 
because  the  bodies  only  of  trees  likely  to  prove  timber  were 
excepted,  and  not,  as  in  the  old  lease,  the  entire  trees  likely  to 
prove  thnber.  They  considered  the  demise  as  comprising  the 
lops,  tops,  and  boughs  of  the  trees  likely  to  become  timber  ;  and 
therefore  the  ancient  rent  was  not  reserved,  because  more  proper- 
ty was  demised  than  was  contained  in  the  old  lease.  They 
thought  it  not  material  wliether  a  rent  could  issue  out  of  the 
tops  of  the  trees  or  not.  And  as  the  bodies  only  were  reserved, 
the  lessors  could  not  cut  the  Ijodies  down,  for  they  could  not  do 
so  without  also  cutting  down  the  tops  ;  and  as  to  which  they 
would  have  no  right  to  do  so,  because  the  lessee  would  have  an 
interest  in  them  for  repairs  and  fuel,  and  for  the  fruit,  and  shade 
fer  his  cattle. 


OUT   OF   WHAT   RENT   IS   TO    ISSUE.  369 

42.  We  may  observe  that  the  rent  could  be  hardly  said  to  issue 
out  of  the  tops  of  the  trees  ;  and  it  may  be  thought  that  the 
express  power  to  cut  and  carry  away  the  trees  would  necessarily 
determine  the  tenant's  right  to  the  shade,  &c.,  and  that  the  lessor 
would  take  both  bodies  and  branches.  EflFect  must  be  given  to 
the   power  to  fell  and  carry  away  the  trees,  and  the 

mere  demise  of  the  tops  of  the  trees,  &c.,  might  be  *con-  [  *413  ] 
sidered  to  give  no  general  right  of  property  to  the  les- 
see. The  case  of  Smith  v.  Bole,  to  which  it  was  compared,(/) 
appears  to  be  distinguishable  ;  for  that  was  the  case  of  a  lease  by 
a  prebend,  without  any  exception  of  wood  or  trees  ;  whereas  in 
the  old  lease  there  was  an  exception  of  the  great  wood  (which 
was  40  a.,)  scil.  oak,  ash,  and  crabtrce ;  and  it  was  made  a  ques- 
tion whether  the  soil  of  the  whole  wood,  or  only  the  trees  and  as 
much  of  the  soil  as  was  sufficient  to  sustain  the  trees,  was  re- 
served ;  but  in  either  view  the  decision  against  the  validity  of  the 
lease  was  correct,  as  more  property  was  demised  by  the  new  than 
by  the  old  lease.  If  the  exception  in  Doe  v.  Lock  had  been  the 
same  as  in  the  old  lease,  yet,  1,  tlie  trees  notwithstanding  the  ex- 
ception, would  have  remained  as  parcel  of  the  inheritance  ;  2,  the 
soil  itself  was  not  excepted,  but  sufficient  nutriment  for  the 
growtli  of  the  trees  ;  3,  the  lessee  would  have  had  the  ])asture  un- 
der the  trees ;  nothing  should  be  recovered  in  waste  but  the  cir- 
cuit of  tlie  root,  and  not  the  latitude  of  the  branches  ;  4,  the  les- 
see would  have  had  all  the  benefits  of  the  trees  ;.  and  o,  the  young 
of  all  birds  that  breed  in  the  trees,  and  the  fruits  ;(w)  so  that, 
whether  excepted  or  not,  the  lessee  took  an  interest  in  the  lops, 
tops,  and  branches.  But  as  the  body  of  the  trees  was  excepted, 
it  seems  that  the  exception  was  as  ample,  as  regarded  soil,  as  that 
i\\  the  original  lease.  The  rent  was  the  ancient  rent,  and  issued, 
it  would  seem,  as  before,  out  of  the  lands  demised.  The  excep- 
tion may  Ijc  thought  to  fall  within  tlie  second  set  of  conditions  ; 
and  if  so,  the  question  was  whether  the  lease  was  granted  in  th^ 
manner  and  form  of  the  leases  referred  to  in  that  part  of  the  leas- 
ing power. 

43.  In  the  same  case  a  question  arose  upon  the  exception  o^ 
mines,  <fec.     The  old  lease  contained  an  exception  of  all  mines 

(/)  Cro.  Jac.  458;  3  Bulstr.  290;  2  Ro.  Abr.  455  (u)  pi.  1. 
(7/1)  Lifford'B  case,  11  Rep.  50  a. 


■370  SUGDEN    ON   POWERS. 

and  quarries  of  stone  and  slate,  and  all  other  mines 
[  *414  ]  *\vliatsocvcr.  And  it  was  held,  of  course,  that  an  ex- 
ception in  a  new  lease  of  all  mines  of  tin  toll,  tin  works, 
copper,  lead,  and  all  other  mines,  minerals,  and  metals  whatsoev- 
er, and  (juarries  of  stone  and  slate,  was  although  not  precisely  in 
words,  yet  in  substance,  conformable  to  the  power.  But  an  ex- 
ception in  another  lease  of  all  mines  of  tin,  toll  tin,  tin  works, 
copper,  lead,  and  all  other  mines,  minerals,  and  metals  whatsoev- 
er, with  liberty  to  dig,  <fec.,  for  all  minerals  and  metals,  the  Court 
said  might  be  questionable. 

44.  The  rent  to  ])e  paid  should,  in  strictness,  be  specified  in  the 
lease  ;  but  although  the  reservation  be  made  in  the  very  words  of 
the  power,  without  stating  the  sum  in  particular,  the  lease  will  be 
supported  if  the  reservation  have  reference  to  some  standard  by 
which  the  rent  can  be  ascertained  with  certainty  and  ease,  for  id 
certum  est  quod  certum  reddi  potest ;  but  if  the  reservation  be 
vague  and  indefinite,  and  not  easily  reducible  to  a  certainty,  the 
lease  will  be  void.  As  an  instance  of  the  first  rule  may  be  quoted 
the  case  of  Lewson  v.  Pigot ;(«)  where,  under  a  power  to  make 
leases  of  certain  lands,  reserving  V2d.  for  every  Cheshire  acre,  a 
lease  was  made  of  all  the  lands,  "  reserving  all  the  rent  intended 
to  be  reserved,"  and  the  lease  was  determined  to  be  valid  :  be- 
cause. Lord  Chancellor  Cowpcr  observed,  there  was  an  absolute 
mathematical  certainty,  than  which  nothing  can  be  more  certain : 
the  very  power  provided  it  should  be  so  ;  at  least,' 12^.  for  every 
Chesliirc  acre.(o)  It  was  only  necessary,  therefore,  to  compute 
the  number  of  acres  in  order  to  fix  the  rent.(;?)  And  in  a  recent 
case,  where  a  tenant  for  life,  with  a  power  of  leasing,  contracted 
to  grant  a  lease  at  the  yearly  rent  of  seven  pounds  for  every  acre 
the  lands,  upon  a  proper  survey  to  be  had,  should  appear  to 
contain,  and  so  in  proportion  for  every  lesser  quantity  than  an 
acre  :  the  uncertainty  of  the  rent  was  olijcctcd  against 
[  *415  ]  *the  performance  of  tlic  agreement,  but  Lord  Rcdesdale 
said,  that  he  did  not  think  it  uncertain,  for  it  was  capa- 
ble of  being  reduced  to  a  certainty  ;  and  it  was  a  common  form 

(n)  3Cha.  Rep.  61,  cited. 
(0)  See  2  Cha.  Rep.  76. 

(p)  And  see  Audley  v.  Audley,  2  Cha.  Rep.  82;  but  note,  there  the  power  did  not 
require  the  reservation  of  any  rent. 


WHAT   IS   A  SUFFICIENT  EESERVATION.  371 

of  reserving  the  rent  in  the  country  where  the  land  was  situated. 
Every  executory  contract  must  contain  this  species  of  uncertainty  ; 
but  if  it  contains  all  that  leads  to  future  certainty  he  took  it  to  be 
sufficient ;  and  he  accordingly  decreed  a  specific  performance  of 
the  con  tract.  (^) 

45.  The  second  rule  is  exemplified  in  the  great  case  of  Or])y  v. 
Mohun,(r)  where  the  power  was  to  grant  leases  of  all  lands  an- 
ciently demised  at  the  ancient  rents,  and  of  the  other  lands  at  the 
best  rents  that  could  be  gotten.  The  power  was  exercised  by  two 
leases,  by  one  of  which  all  the  lands  not  anciently  let  were  demised, 
reserving  thereon  "  the  best  improved  rents  ;"  and  by  the  other, 
all  the  lands  within  the  ])ower  were  let,  reserving  the  "  ancient 
and  accustomable  rents ;"  so  that  instead  of  specifying  the  sums 
to  be  paid  as  rent,  the  words  of  the  power  were  repeated.  The 
cause  was  heard  before  Lord  Keeper  Cowper,  assisted  by  the  two 
Chiefs,  Holt  and  Trevor :  they  unanimously  agreed  that  the  lease 
was  void  as  to  the  demesnes,  because  the  remainder-man  could  not 
possibly  tell  what  to  demand  under  the  reservation  of  the  best 
improved  rents. 

But  as  to  the  lands  anciently  demised,  Lord  Chief  J.  Holt  held 
that  the  rent  was  certain  enough,  and  the  lease  good.  It  must  be 
admitted,  he  said,  that  a  power  to  lease,  reserving  the  ancient 
rent,  is  a  certain  i)ower,  and  well  enough  to  be  understood  what 
it  is,  and  what  it  means  ;  and  why,  he  asked,  shall  the  same  words 
that  create  and  reduce  the  power  to  a  sufficient  certainty,  when 
turned  into  a  lease,  render  it  uncertain  ?  The  same  certainty 
that  is  in  the  power  is  carried  over  into  the  lease,  which  is  the 
exeoution  of  it ;  but  neither  in  the  one  or  the  other  is 
it  mentioned  *what  the  old  rent  is  but  that  may  be  aver-  [  *416  ] 
red,  and  that  is  certain  which  may  be  made  certain.  But 
the  Lord  Keeper  and  Lord  C.  J.  Trevor  were  of  opinion  that  the 
rent,  even  as  to  the  lands  anciently  demised,  was  not  certain,  and 
that  therefore  the  lease  was  void.  They  argued,  that  as  the  intent 
of  the  settlement  was(jy)  that  the  tenant  for  life  in  possession 
might  lease,  so  it  was  on  the  other  hand  that  the  revenue  should 

(q)  Shannon  v.  Bradstreet,  1  Ilep.  t.  Rcdesdale,  52. 

(r)  2  Vern.  531.  542;  Prec.  Cha.  267;  2  Freem.  291;  best  reported  in  3  Cha. 
Rep.  66. 

(s)  2  Vera.  543.  544. 


372  SUGDEN   ON  POWERS. 


not  be  diminislied,  but  the  ancient  rent  at  least  reserved,  and  in 
such  beneficial  manner  as  might  with  certainty,  and  without  any 
difficulty,  be  recovered  ;  and  for  that  reason  it  was  provided  that 
there  should  be  a  counterpart  of  the  lease,  that  it  might  be  better 
known  what  the  rent  was,  and  how  to  recover  it.  If  the  rent  had 
been  mentioned  in  the  lease,  there,  if  the  tenant  had  refused  to 
pay  it,  the  proof  would  have  ])een  turned  upon  the  tenant  to  show 
the  rent  in  his  lease  was  not  the  ancient  rent ;  and  if  he  should 
do  so,  it  would  make  his  lease  void.  But  as  the  lease  was  con- 
trived, the  remainder-man  might  be  baffled  and  nonsuited  twenty 
times  before  he  could  declare  or  avow  in  certain  for  the  rent  pay- 
able in  the  lease  ;  and  yet  the  tenant  still  holds  the  land,  and  doth 
not  prove  his  own  lease  void,  as  must  have  been  done  in  the  other 
case.  Where  there  is  a  power  of  leasing  in  general  words,  as 
reserving  the  ancient  rent,  in  the  execution  of  the  power  which  is 
to  be  explained  and  made  certain,  the  rule,  cerium  est  quod  cerium 
reddi  potest,  is  to  be  understood  of  a  reference  to  that  which  is 
absolutely  certain,  to  former  letters-patent  or  the  like  :  but  this 
is  rather  a  delegating  the  power  of  leasing  to  the  plaintiff,  than 
an  execution  of  the  power,  and  is  the  first  attempt  of  the  kind  ; 
and  it  is  a  good  rule,  that  what  never  has  been,  ought  never  to  be  ; 
and  therefore  they  adjudged  the  lease  to  be  void,  and  this  decree 

was  confirned  in  the  House  of  Lords. (Q 
[  *417  ]  *46.  It  is  perfectly  clear  that  several  demises  may  be 
comprised  in  one  deed,(M)  although  very  subtle  distinc- 
tions are  taken  between  what  are  and  what  are  not  distinct  reserva- 
tions, so  as  to  constitute  several  leases.  It  frequently  happens 
that  lands  comprised  in  a  power  are  demised  in  the  same  lease  with 
lands  not  comprised  in  the  power  ;  or  lands  are  demised,  as  to  some 
of  which  the  power  is  duly  complied  with,  and  as  to  others,  it  is 
not ;  and  in  these  cases  the  validity  of  the  lease  depends  upon  the 
quantum  of  the  rent  reserved,  and  the  mode  of  the  reservation. 

47.  The  first  question  arose  in  Mountjoy's  case,(a;)  where  the 
party  was  precluded  from  making  any  alienation,  except  for  cer- 
tain terms  reserving  the  ancient  rent,  and  the  property  was  de- 

(/)  3  Bro.  p.  C.  248,  nom.  Duchess  of  Hamilton  v.  Mordaunt;  and  see  Owen  v. 
Thomas,  reported  Cro.  Car.  94;  3  Keb.  380,  cited, 
(u)  See  Doe  v.  Rendle,  3  Mau.  &  Selw.  99. 
(x)  5  Rep.  3  b. 


I 


APPORTIONMENT   OF   RENT   WHERE   SEVERAL   DEMISES.         373 

mised,  together  with  certain  free  rents,  heriots,  &c.,  which  as 
they  had  never  been  let  did  not  fall  within  the  power,  at  one 
rent,  being  a  sum  equal  to  the  aggreg'ate  of  all  the  rents  then 
paid,  and  the  yearly  value  of  a  small  piece  of  waste ;  the  lease 
was  held  to  be  void,  and  it  was' resolved  that  no  apportionment 
(if  any  should  be  in  these  cases)  would  make  the  render  good, 
for  the  heriots^  Sfc.  could  not  be  reduced  to  a  yearly  value.  Mr. 
Justice  Dampier  observed,  in  a  late  case,  that  the  grant  and  ren- 
der of  one  entire  rent  in  that  case  tended  to  destroy  the  evidence 
of  the  ancient  rent.  (2/) 

48.  And  in  How  and  Whitfield, (0)  the  ancient  rent  was  re- 
quired to  be  reserved,  which  amounted  to  six  shillings  per  annum, 
and  by  the  pleadings  it  appeared  that  the  lands  within  the  power 
inter  alia,  were  demised,  reserving /?rozwf/e  six  shillings  per  annum ; 
and  the  Court  thought  it  might  be  intended  that  the  inter 
alia  might  comprehend  nothing  but  *such  things  out  of  [  *'418  ] 
which  a  rent  could  not  be  reserved,  and  then  the  six 
shillings  were  reserved  only  for  the  five  acres  (the  land  comprised 
in  the  power.)  However,  iha proinde  might  reasonably  be  referred 
only  to  the  five  acres,  and  not  to  the  inter  alia ;  and  that  a  dis- 
tinct reservation  of  six  shillings  might  be  for  five  acres  ;  and  judg- 
ment was  given  accordingly.  Thus  the  case  is  reported  in  Vcntris  ; 
but  even  on  that  statement  the  Court  does  not  appear  to  have  de- 
cided, what  it  would  have  been  diSicult  to  do,  that  a  lease  of  lands 
comprised  in  the  power,  and  other  lauds,  yielding  therefore  a  sin- 
gle rent,  sufiicient  only  for  the  lands  in  the  power,  should  be  held 
to  issue  out  of  them  only.  The  Court  appears  merely  to  have  tak- 
en advantage  of  the  pleading,  and  to  have  intended  that  there 
was  a  distinct  reservation  of  the  six  shillings  for  the  lands  com- 
prised in  the  power,  which  certainly  would  have  been  valid  ;  and 
moreover  it  appears  from  Jones's  report  of  the  case,  and  he  was 
one  of  the  Judges  before  wliom  the  cause  was  heard,  that  the 
Court  thought  the  objection  good,  but  the  defendant  perceiving 
that  the  opinion  of  the  Court  was  against  him  on  another,  which 
was  the  grand  point  in  the  cause,  consented,  upon  payment  of 
costs,  that  judgment  should  be  given  for  the  plaintiff.     With  this 

(y)  2  Mau.  &  Selw.  277,  278. 

(z)  1  Ventr.  339;  2  Jo.  110;  2  Show.  67;  and  see  Earl  of  Cardigan  v.  Montague, 
App.  No.  13;  Doe  v.  Matthews,  5  Barn  &  Adol.  298;  2  New.  &  Man.  264. 

YoL.  II.  32 


374  SUGDEN   ON   POWERS. 

Shower's  report  agrees  ;  and  Jones  is  there  made  to  say,  that 
"  proinde''  was  the  most  common  and  general  word  used  in  leases 
for  a/I  the  tilings  demised. 

49.  In  a  case  like  that  of  How  and  Whitfield,  upon  the  merits 
it  would  not  be  possible,  under  any  construction,  to  support  the 
lease.  If  the  reversions  of  the  several  estates  were  afterwards  to 
descend  to  different  persons,  there  must  be  an  apportionment  of 
the  rent,  and  then  sufficient  would  not  be  left  to  satisfy  the  terms 
of  the  power.  There  appears  to  be  no  sound  principle  upon  which 
it  can  be  contended  that  the  whole  rent  is  reserved  in  respect  only 
of  the  land  within  the  power  ;  although  a  man  may  demise  his 

own  lands  without  any  rent,  and  the   Court  of  K.  B. 
[  *411'  ]  lately  *observed  that  tire  case,  as  reported  in  Ventris,  it 
should  seem  cannot  be  relied  upon. (a) 

50.  The  other  point  arose  in  the  case  of  Orby  v.  Mohun(&)  but 
it  was  unnecessary  to  decide  it.  The  power  was  to  lease  for  three 
lives  or  twenty-one  years,  &c. ;  1st.  Of  the  lands  anciently  demised 
whereof  fines  had  been  usually  taken,  reserving  the  ancient  rents 
or  more  ;  2d.  Of  the  other  lands,  reserving  the  most  approved 
rents  that  could  be  got.  Two  leases  were  made  under  the  power  ; 
one,  of  the  estate  not  anciently  let,  at  the  best  improved  rents, 
and  the  other,  of  all  the  lands  in  the  settlement,  reserving  there- 
fore "  the  aficient  rents  "  and  did  not  s])ecify  what  those  rents 
were ;  and  supposing  the  reservation  good,  considered  abstractedly, 
the  question  was,  whether  the  lease  v*^as  not  bad,  on  the  ground 
that  it  comprised  the  lands  not  angiently  demised.  In  support  of 
the  lease,  it  was  argued  that  the  rent  issuing  out  of  all  must  be 
apportioned,  and  so  it  would  be  in  nature  of  several  leases  in  con- 
struction of  law,  because  redendo  singida  sing-idi.';;  the  ancient 
rents  shall  be  construed  to  be  reserved  for  the  lands  anciently  let ; 
and  no  rent  being  reserved  for  the  lands  not  anciently  demised,  it 
is  void  as  to  them.  But  Lord  C.  J.  Trevor  expressed  a  contrary 
opinion,  and  placed  much  weight  on  the  word  "  therefore"  in  the 
reservation.  He,  however,  declined  delivering  an  absolute  opin- 
ion on  the  point,  as  he  went  upon  another  reason,  (c)  Lord  Keeper 
Cowper  also  thought  the  lease  bad  on  the  ground  of  the  reserva- 
tion, (t?)     But  Lord  Chief  Justice  Holt  maintained  strongly  the 

(a)  See  2  Adol.  &  Ell.  750.  (b)  3  Ch.  Rep.  56,  supra,  p.  415. 

(c)  2  Cha.  Rep.  58,  59.  (rf)  3  Cha.  Rep.  78,  79. 


APPOETIONMENT  OF  RENT   WHERE   SEVERAL   DEMISES.         375 

contrary  opinion  ;  he  insisted  that  the  reservation  was  several ; 
for  that  which  was  not  anciently  demised  will  not  hurt  the  other, 
but  must  fall  to  the  ground  ;  and  the  contrary  opinion,  he  said, 
was  contrary  to  all  the  rules  of  law  :  and  as  to  the  word  there, 
fore,  he  clearly  proved  that  however  joint  words  are, 
yet  they  *shall  be  taken  severally  where  they  have  a  [  *420  ] 
distinct  subject-matter  to  work  upon.(e) 

51.  In  the  case  of  Campbell  v.  Leach, (/")  opened  and  unopen- 
ed mines,  were  demised  by  one  deed,  reserving  generally  a  cer- 
tain proportion  of  the  produce.  The  Master  of  the  Holls  held 
that  the  power  did  not  authorize  a  demise  of  the  unopened  mines, 
and  the  lease  being  of  opened  and  unopened  mines,  the  whole 
was  void.  Upon  the  appeal  it  was  argued  not  to  be  like  the  case 
where  two  things  are  granted  which  are  inseparable,  and  the  one 
is  out  of  the  power,  and  the  other  within  it :  in  such  case  the 
lease  might  be  void  as  to  both.  But  here  the  opened  and  un- 
opened mines  were  separate,  and  the  rent  reserved  was  not  a 
gross  sum  for  the  whole,  but  a  proportion  of  the  profits  of  each 
mine  ;  and  the  Court  accordingly  overruled  the  objection ;  and 
this  of  course  upon  legal  and  not  equitable  grounds,  for  if  the 
lease  on  this  objection  had  been  bad  at  law,  it  would  have  been 
difficult  to  support  it  in  equity.  The  decision  upon  tlie  appeal  was 
clearly  right.  The  addition  of  the  unopened  mines,  which  were 
not  within  the  power,  could  not  affect  the  validity  of  the  demise 
of  the  opened  mines,  for  the  reservation  operated  distinctly  and 
separately  on  them,  and  was  simply  inoperative  as  to  the  unopen- 
ed mines.  No  portion  of  the  rent  reserved  for  the  opened  mines 
attached  to  the  unopened  mines,  nor  did  the  rent  require  to  be 
apportioned  in  consequence  of  the  unopened  mines  not  passing 
by  the  power. 

52.  These  eases  appear  to  depend  upon  the  nature  of  the  re- 
servation. But  there  are  cases  in  which  one  entire  rent  has  been 
reserved  for  an  estate  partly  within  the  power  of  leasing  and 
partly  excepted  out  of  it,  or  not  in  the  settlement ;  so  that  the 
lease  was  incapable  of  support  upon  the  ground  of  a  distinct  re- 
servation in  law  for  the  part  within  the  power. 

63.  This  point  arose  in  the  great  case  of  the  *Earl  [  *421  ] 

(e)  3  Cha.  Rep.  68,  99. 
(/)Ambl.  7-10.     Vide  supra. 


376  SUGDEN  ON   POWERS. 

of  Cardigan  v.  Montague  :(g')  landscomprised  in  the  power 
and  lands  excepted  out  of  it  were  demised  by  one  lease  at  an 
entire  rent,  and  the  ]\Iaster  reported  the  lease  to  be  void  and 
not  warranted  by  tlio  ])owor,  and  the  report  was  acquiesced  in. 
The  lease  of  course  was  void  as  to  the  property  not  authorized  to 
be  leased,  and  it  does  not  appear  whetlier  |u})on  an  apportionment 
a  sufficient  rent  would  have  remained  for  the  property  which  was 
authorized  to  be  demised. 

54.  In  a  case  before  Lord  Kenyon  at  nisi  prius,(Ji)  a  rector 
made  a  lease  under  an  act  of  parliament,  and  the  learned  Judge 
said,  that  if  the  demise  was  of  lands  and  an  entire  rent  reserved, 
and  there  was  any  part  which  could  not  be  legally  demised,  the 
whole  of  the  demise  was  void.  The  power  was  to  lease  at  the 
best  rent.     The  case  was  decided  upon  another  point. 

55.  In  a  recent  case,  a  lease  by  a  tenant  in  tail  of  the  entailed 
lands,  which  could  not  be  sustained,  with  leasehold  lands  inter- 
mixed, at  an  entire  rent,  was  held  void  for  the  whole ;  for  it  was 
said  there  must  be  an  apportionment,  and  how  could  that  be 
done  ?(i)  But  this  clearly  could  not  be  maintained,  and  it  has 
since  been  overruled,  for  of  course  there  may  be  an  apportionment 
for  the  land  not  within  the  power,  and  therefore  the  lease  as  to 
that  is  valid. (/) 

56.  But  we  are  now  to  consider  whether  there  can  l)e  an  ap- 
portionment, so  as  to  sustain  the  lease  as  a  due  execution  of 
the  power. 

57.  The  point  appears  to  have  arisen  in  Coxe  v.  Day,  where 
both  of  the  estates  were  comprised  in  the  settlement.  (A:)  Tlie 
facts  appear  to  be,  that  a  fee-simple  estate  was  settled  to  uses  in 

strict  settlement,  with  a  power  of  leasing  at  the  ^best 
[  *422  ]  rent,  and  a  prebeudal  lease  for  lives  was  *by  the  same 

deed  vested  in  trustees  upon  trusts  corresponding  with 
the  uses  of  the  fee-simple  estate,  and  a  power  was  given  to  the 
trustees,  at  the  request  of  the  tenant  for  life,  to  make  underleases 
similar  to  the  leases  warranted  by  the  first  power.     A  lease  was 

(,«•)  App.  No.  13  (3),  (5);  and  see  (2). 
(/i)  Doe  V.  Lloyd,  3  Esp.  Ca.  78, 
(!)  Rees  V.  Phillip,  Wightw.  09. 
( ;■ )  Doe  V.  Meyler,  2  Mau.  &  Selw.  276. 
(A-)  13  East,  118. 


OP  APPORTIONMENT  OP  AN  ENTIRE  RENT.         377 

granted  by  a  tenant  for  life  of  the  prebendal  property  and  of  the 
fee-simple  lands,  at  one  yearly  rent.  Upon  an  ejectment,  the 
lease  was  avoided  as  to  the  prebendal  lands,  as  the  legal  estate 
was  in  the  trustees,  and  not  in  the  tenant  for  life  when  he  granted* 
the  lease. (/)  Upon  a  case  subsequently  directed  by  the  Court  of 
Chancery,  two  questions  arose,  which  would  impeach  the  lease  al- 
together as  an  execution  of  the  power,  and  the  case  was  decided 
upon  those  questions  against  the  validity  of  the  lease  generally. 
But  a  third  question  was  raised,  viz.  whether  in  consequence  of  the 
lease  of  the  prebendal  part  of  the  demised  premises  being  void  at 
law,  the  lease  was  or  was  not  valid  as  to  the  freehold  part,  the 
rent  for  the  whole  being  entire  ;  and  in  case  the  lease  is  valid  as 
to  the  freehold  part  of  the  premises,  whether  the  lessee  would  be 
liable  to  pay  the  whole  rent  for  the  same,  or  to  have  the  rent  ap- 
portioned. The  counsel  against  the  lease,  admitted  the  third 
point  w^as  against  him,  upon  the  authority  of  Co.  Litt.  148  b, 
which  does  not  appear  to  have  been  questioned.  Lord  Coke 
>says,  "  Concerning  the  apportionment  of  rents,  there  is  a  diflfer- 
ence  between  a  grant  and  a  reservation  of  a  rent ;  for  if  a  man 
be  seised  of  two  acres  of  land  ;  of  one  in  fee-simple  and  of  ano- 
ther in  tail ;  and  by  his  deed  grant  a  rent  out  of  both  in  fee,  in 
tail,  for  life,  <fec.,  and  dicth  ;  the  land  entailed  is  discharged,  and 
the  land  in  fee-simple  remains  charged  with  the  whole  rent :  for, 
against  his  own  grant,  he  shall  not  take  advantage  of  the  weak- 
ness of  his  own  estate  in  part.  But  if  he  make  a  gift  in  tail,  a 
lease  for  life,  or  for  years,  of  both  acres  :  the  donor  or  lessor 
dieth  ;  the  issue  in  tail  avoideth  the  gift  or  lease  ;  the  rent  shall 
be  apportioned  ;  for  seeing  the  rent  is  reserved  out  of 
und  for  the  whole  land,  it  is  reason  *that  when  part  is  [  *423  ] 
evicted  by  an  elder  title,  the  donee  or  lessee  shall  not 
be  charged  with  the  whole  rent,  but  that  it  should  be  apportioned 
rateably  according  to  the  value  of  the  land,  as  Littleton  here 
saith.-' 

58.  In  Doe  v.  Meyler,(w)  a  lease  comprised  lands  of  which  the 
lessor  was  seised  in  fee,  and  lands  of  which  he  was  tenant  for  life, 
with  a  power  of  leasing  at  the  ancient  rent  or  more,  and  an  entire 

(0  Doe  V.  Day,  10  East,  427. 
(m)  2  Mau.  &  Selw.  276. 
32* 


378  SUDGEN    ON    POWERS. 

rent  was  reserved  for  the  Avliole,  but  the  lease  in  other  respects 
was  bad  as  an  execution  of  the  power ;  so  that  the  only  question 
was,  whether  the  lease  was  valid  as  to  the  pi-incipal  lands,  which 
'was  decided  in  the  affirmative,  upon  the  authority  of  the  passage 
in  Co.  Litt.  before  quoted. 

59.  In  a  later  case  Mr.  Justice  Patterson  observed,  that  in  Doe 
V.  Mcyler,  it  might  have  been  that  the  proper  rent  was  reserved 
•upon  the  lands  comprised  in  the  power  ;  for  Dampier,  Justice,  ob- 
served, that  the  lands  held  in  fee  might  have  been  demised  with- 
out any  rent.(w)  But  the  observation  of  Dampier,  Justice,  was 
made  with  reference  to  the  opinion  which  he  had  expressed  at  the 
trial  by  a  recollection  of  the  Lord  Mountjoy's  case,  without  ad- 
verting, he  said,  to  the  distinction  that  the  grant  and  render  of 
one  entire  rent  in  that  case  tended  to  destroy  the  evidence  of  the 
ancient  rent ;  hut  that  was  not  so  there,  because  not  any  rent  was 
necessary  to  be  reserved  for  the  lands  in  fee  simple.  He  does 
not,  therefore,  appear  to  have  thought  that  no  portion  of  the  rent 
was  to  go  with  the  fee-simple  lands,  but  that  it  was  actually  a 
case  for  an  apportionment.  Mr.  Justice  James  Park  observed, 
that  Doe  v.  Meyler  was  analogous  to  the  case  of  a  person  leasing 
at  an  entire  rent  lands  to  which  he  has  title,  and  others  to  which 
he  has  none  ;  where,  on  the  lessee  being  evicted  of  part  by  title 
paramount,  the  rent  may  be  apportioned,  (o) 

GO.  Mr.  Justice  Park,  in  delivering  his  opinion  in 
[  *424  ]  *Smith  and  Doe,  in  the  House  of  Lords,(j9)  observed, 
that  in  Doe  v.  Meyler  the  lease  was  not  executed 
according  to  the  power,  for  it  added,  "  and  if  there  be  no  suffi- 
cient distress ;"  but  the  Court  held,  though  the  lease  was  void 
because  not  executed  according  to  the  power,  yet  it  was  good  as 
to  the  land  of  which  the  lessor  was  seised  in  fee,  and  the  Court 
apportioned  the  rent ;  which  was  an  erroneous  judgment,  if  tiie 
objection  to  the  lease  in  Smith  and  Doe  was  not  a  good  one.  But 
we  may  observe  that  the  apportionment  of  the  rent  was  proper  in 
any  view  of  the  case  ;  for  even  if  the  lease  had  been  a  good  exe- 
cution of  the  power,  unless  the  remainder-man  and  the  heir-aHaw 

(7/)  See  5  Barn.  &  Adol.  302;  2  Nev.  &  Man.  268. 
(0)  Ibid. 
{p)  Infra. 


ENTIRE   RENT   FOR   TWO    ESTATES.  379 

or  devisee  of  the  lessor  had  been  the  same  person,  it  was  of  neces- 
sity that  the  rent  should  be  apportioned. 

61.  In  the  later  case  of  Doe  v.  Rendle,(9)  a  power  to  lease, 
reserving  the  ancient  rents,  was  held  to  extend  only  to  the  lands 
anciently  let.  A  lease  was  granted  under  the  power  of  an  estate 
consisting  partly  of  lands  anciently  let,  and  partly  of  lands  which 
had  never  before  been  demised,  l)ut  both  were  comprised  in  the 
settlement.  The  lease  was  at  one  entire  rent,  viz.  the  ancient 
rent  payable  for  the  part  of  the  property  which  had  been  an- 
ciently let.  After  the  death  of  the  lessor,  upon  which  event  the 
lease  ceased  as  far  as  it  comprised  the  lands  not  before  let,  the 
question  was,  whether  it  could  be  maintained  as  to  the  lands 
within  the  power.  It  was  contended,  that  as  nothing  passed  by 
the  instrument  as  an  appointment,  except  the  lands  anciently  de- 
mised, the  ancient  rent  was  res(?i-ved,  and  issuing  out  of  those 
lands  only.  But  the  Court,  upon  the  authorities  applying  to 
leases  under  the  enabling  statutes  and  Mountjoy's  case,  held  that 
that  cannot  be  deemed  the  ancient  and  accustomed  rent  which  is 
reserved  upon  lands  never  let  before,  as  well  as  upon  lands  an- 
ciently let. 

62.  We  cannot  fail  to  observe,  that  in  this  case  no  apportionment 
could  have  made  the  lease  valid  under  the  power,  for 

the  ancient  rent  only  was  reserved  for  all  the  *property.  [  *425  ] 

If  the  lease  had  been  partially  valid,  the  lessee,  upon 

the  eviction  of  the  part  not  well  demised,  would  have  been  entitled 

to  an  apportionment,  and  could  not  have  been  compelled  to  pay 

for  a  part  of  the  property  all  the  rent  he  agreed  to  pay  for  the 

whole. 

68.  In  the  last  case  in  which  this  point  arose, (r)  a  lease  was 
granted  under  a  power  of  land  within  the  power,  and  also  of  two 
fields  excepted  out  of  it,  at  an  entire  rent.  The  power  required 
the  like  rents  as  were  then  reserved,  or  more.  The  rent  reserved 
by  the  testator,  for  the  part  authorized  to  be  let,  was  29/.  The 
rent  reserved  by  the  lease  in  question  was  40/.  The  Lord  Chief 
Justice  simply  observed,  that  Doe  v.  Rendle  was  a  clear  authority 
for  the  plaintifl',  and  so  the  lease  was  held  to  be  altogether  void. 
But  this  might  require  reconsideration. (s)     It  was  certainly  dis- 

{q)  3  Mau.  &  Selw.  99. 

(r)  Doe  T.  Matthews,  5  Barn.  &  Adol.  298. 

(s)  See  besides  the  peculiar  form  of  the  reservation. 


380  SUG-DEN   ON   POWERS. 

tinguishable  from  Doc  v.  Rcadle,  for  the  reason  before  stated. 
The  point  in  Doe  v.  Matthews  came  before  the  Court  upon  a  case 
reserced  upon  a  trial  in  ejectment,  and  Mr.  Justice  James  Parke 
observed,  in  the  course  of  the  argument,  that  it  could  not  be 
known  from  the  data  in  the  case  what  would  be  the  proper  portion 
of  rent  on  cither  part  of  the  demised  property,  the  value  of  the 
two  closes  not  being  given.  In  truth,  therefore,  the  Court  were 
precluded  by  the  case  from  considering  the  point  upon  which  the 
validity  of  the  lease  pro  tanlo  altogether  depended. 

G4.  The  cases  establish  this  rule,  that  where,  as  in  Campbell  v. 
Leach,  a  rent  is  reserved  according  to  the  quantity  or  produce, 
as  the  tenth  of  the  produce  of  every  mine,  or  40s.  an  acre,  or  the 
like,  then,  although  the  demise  is  joint  in  terms,  and  part  is  not 
well  demised,  or  not  comprised  in  the  power,  yet  it  shall  hold 
good  as  to  the  lands  within  thte  power,  and  duly  demised ;  but 
that  where  the  ancient  rent  is  required,  and  that  part  is  reserved 

as  an  entire  rent  for  the  land  within  the  power  and 
f  *426  ]  more,  the  lease  is  *bad  as  an  execution  of  the  power, 

not  simply  because  it  tends  to  destroy  the  evidence  of 
the  ancient  rent,  but  because  upon  an  apportionment  the  ancient 
rent  would  not  remain  for  the  land  anciently  let.  Where  the 
))est  rent  is  required,  and  the  reservation,  although  of  one  entire 
rent  for  land  partly  within  the  power,  and  partly  not  subject  to 
it,  would  upon  an  apportionment  leave  sufficient  for  the  settled 
lands,  so  as  to  satisfy  the  terms  of  the  power,  it  appears  to  be  still 
open  to  maintain  that  the  lease  may  be  supported  as  a  due  execu- 
tion of  the  power.  The  inclination  of  the  Courts  would  probably 
))e  to  hold  that  tlie  remainder-man  was  not  bound,  on  account  of 
the  difficulty  which  such  a  reservation  would  impose  upon  him. 
But  the  point  has  not  been  considered  with  the  attention  which  it 
deserves.  T\here  are  grounds  upon  which  such  a  lease  might  be 
properly  supported,  and  a  contrary  resolution  would  work  great 
injustice  against  lessees,  who  frequently  have  no  means  of  guard- 
ing against  the  introduction  of  parcels  not  within  the  power. 

65.  If  an  estate  were  held  in  undivided  moieties,  and  the  same 
person  were  seised  in  fee  of  one  moiety,  and  tenant  for  life,  with 
a  power  of  leasing,  of  the  other,  and  were  to  make  a  lease  of  the 
entirety  at  an  entire  gross  rent,  it  seems  clear,  that  upon  his 
death,  the  rent  would  go  according  to  his  several  interests  in  the 


EXTIRE  EENT   FOR  TWO   ESTATES.  •     381 

land;  that  is,  one  moiety  with  the  settled  portion  of  the  estate, 
and  the  other  moiety  with  the  unsettled ;  and  that,  if  the  rent 
were  sufficient  in  amount,  the  power  would  be  well  executed. 

66.  In  none  of  the  cases  hitherto  considered  was  there  a  dis- 
tinct reservation  of  a  particular  sum  in  respect  of  the  lands  com- 
prised in  the  power  ;  where  there  is  such  a  reservation,  that 
constitutes  a  several  demise,  and  no  objection  can  be  raised  to  the 
execution  of  the  power.  (^) 

67.  In  powers  of  leasing  it  is  usual  to  express  that 

the  *rent  reserved  shall  be  incident  to  and  go  along  [  *427  ] 
with  the  reversion  and  inheritance  of  the  estate  demis- 
ed ;  and  in  well-drawn  leases  under  powers  the  rent  is  accordingly 
reserved  to  the  tenant  for  life,  and  after  his  decease  to  the  person 
or  persons  who  shall  for  the  time  being  be  entitled  to  the  rever- 
sion and  inheritance  of  the  premises  under  the  instrument  creating 
the  power.  But  it  is  well  established,  that  a  reservation  to  the 
tenant  for  life,  exercising  the  power,  "  his  heirs  and  assigns,"  is  a 
good  reservation  ;  for  those  words  mean  of  necessity  the  person 
to  whom  the  inheritance  shall  go ;  the  words  can  have  no  other 
meaning. («)  It  is  not  unusual  to  reserve  rent  generally  during 
the  term,  without  saying  to  whom ;  and  in  Whitlock's  case  it  was 
agreed  that  this  was  the  most  clear  and  sure  way,  and  the  law 
will  make  tlie  distribution.  However,  all  the  three  several  ways, 
viz.  to  the  tenant  for  life  and  persons  in  remainder ;  to  the  tenant 
for  life,  his  heirs  and  assigns,  and  generally  during  the  term,  are 
good  enough  and  effectual  in  law.  It  was  originally  argued  in 
"Whitlock's  case,  that  even  the  reservation  to  such  person  or  per- 
sons who  shall  have  the  inheritance  of  the  premises,  was  merely 
void,  for  no  rent  could  be  reserved  but  to  the  lessor,  donor  or 
feoffor,  and  his  heirs,  Avho  are  privies  in  blood,  and  not  to  any 
who  is  privy  in  estate.  But  it  was  resolved  that  the  reservation 
was  good  ;  for  the  lease  hath  not  its  essence  from  the  estate  of 
the  lessor,  which  he  hath  for  life,  but  the  lease  hath  its  essence 
out  of  the  original  assurance,  and  in  construction  of  law  precedes 
the  estate  for  life  and  all  the  remainders ;  for  after  the  lease 

(/)  For  what  amounts  to  a  several  reservation,  see  Knight's  case,  5  Rep.  54  b;  and 
see  Doe  v.  Rendle,  5  Mau.  &  Selw.  99. 

(w)  Whitlock's  case,  8  Rep.  G9  b;  Hotley  v.  Scot,  LolTt,  316,  3  Bligh,  331,  n.;  and 
see  Dougl.  572;  Campbell  v.  Leach,  Ambl.  740. 


382  BUGDEN   ON   POWERS. 

made,  it  is  as  much  as  if  the  use  had  been  limited  origiually  to 
the  lessee  for  the  term  ;  and  then  the  other  limitations,  in  con- 
struction of  law,  follow  it.  Then  when  the  lessor  reserves  rent 
to  him  and  his  heirs,  it  is  good ;  for  that,  by  construction  of  law, 

})recedes  the  limitation  of  the  uses  ;  and  then,  it  beiug 
[  *428  ]  well  reserved,  it  is  *well  transferred  to  every  one  to 

whom  any  use  is  limited.  So  if  the  reservation  be  to 
the  lessor,  and  to  every  person  to  whom  the  inheritance  or,  rever- 
sion of  the  premises  shall  appertain  during  the  term,  that  is  like- 
wise good ;  for  the  law  will  distribute  it  to  every  one  to  whom 
any  limitation  of  the  use  shall  be  made :  and  in  such  case  no  rent 
is  reserved  to  a  stranger,  for  the  reservation  precedes  the  limita- 
tions of  the  uses  to  strangers. 

68.  In  Berry  v.  White, (:r)  where  the  reservation  was  to  the  les- 
sor, his  heirs  and  assigns,  the  lease  was  not  made  by  the  settlor. 
Bridgraan,  C.  J.,  observed  that  the  reason  held  well  in  Whitlock's 
case,  for  Whitlock,  wlio  made  the  lease,  made  the  settlement ; 
and  therefore,  if  (as  the  law  makes  the  construction)  the  lease 
was  made  before  the  remainders  limited,  then  the  rent  was  well 
reserved  to  him,  his  heirs  and  assigns,  for  he  had  the  inheritance 
at  the  time  of  that  reservation.  But  in  the  case  before  him,  A. 
made  the  settlement,  and  B.,  who  was  not  his  heir  made  the  lease  ; 
and  therefore  such  a  reservation  to  B.,  his  heirs  and  assigns,  be- 
fore the  limitation  of  uses,  had  be*en  naught.  But  he  held  the 
reservation  good,  Ijecause  it  was  during  the  continuance  of  the 
term  ;  and  he  considered  the  addition  of  the  words,  "  to  him,  his 
heirs  and  assigns,  as  being  void  in  themselves,  and  not  vitiating 
the  reservation,  which  was  good  without  them.  And  he  held,  that 
if  B.  had  reserved  the  rent  to  him,  his  executors  and  assigns, 
during  the  term,  or  to  him  and  his  wife  during  the  term,  or  to 
him  during  t/ie  term,  the  law  would  have  rejected  that  which  is 
void. 

69.  In  a  case(?/)  where  an  estate  was  settled  to  the  use  of  a 
mortgagee  for  one  thousand  years,  remainder  to  one  for  life  with 
remainders  over,  with  a  power  to  the  tenant  for  life  to  lease  for 
ten  years  from  the  date  of  the  deed,  or  seven  years  from  the  day 

(i)  BriJg.  by  Baa.  103. 

(jr)  Rogers  V.  Humphreys,  4  Adol.  &  Ell,  209. 


TO   WHOM  RENT   SHOULD   BE  RESERVED.  383 

of  her  decease,  reserving  the  best  rent,  &c.  and  the 
tenant  for  life  made  a  lease  under  the  power  for  *sevcn  [  *429  ] 
years  from  her  death,  paying  the  rent  to  M.  R.  (the 
remainder-man  in  tail)  or  the  person  or  persons  who  for  the  time 
being  should  be  entitled  to  the  freehold  or  inheritance  of  the 
premises  immediately  expectant  on  her  decease,  it  was  held  that 
the  prior  mortgagee  for  years  was  entitled  to  the  rent. 

70.  The  same  rule  prevails  as  to  any  other  reservation,  e.  g. 
heriots,  and  equally  to  the  persons  by  whom  the  render  is  to  be 
made.  Therefore  where  in  a  power  to  lease  for  years  determina- 
ble upon  lives,  the  usual  reservations  were  requirud  and  the  old 
lease  reserved  the  best  good  of  the  lessee,  his  executors,  adminis- 
trators, or  assigns,  or  such  person  as  shall  be  in  possession  of  the 
premises,  the  power  was  held  to  be  satisfied  by  a  reservation  of 
the  best  goods  of  the  j^erson  or  persons  who  for  the  time  being 
shall  be  tenant  or  tenants  in  possession  of  the  same  premises. 
And  a  reservation  in  the  same  case  of  the  best  goods  of  the  ten- 
ant by  name,  stopping  there,  the  Court  would  by  no  means  say 
was  objectionable,  for  as  the  payment  of  these  heriots  could  only 
be  enforced  by  distress  or  action,  a  distress  might  be  made  of  the 
best  beast  of  the  tenant  named,  if  alive,  or  should  he  be  dead  or 
have  parted  with  the  premises,  what  was  his  best  beast.  (2r) 

71.  So  if  the  ancient  reservation  of  suit  to  the  mill  were  to  the 
lord  of  the  manor,  and  in  the  new  lease  it  is  to  the  owner  of  the 
inheritance,  that  can  make  no  difi[erence.(a) 

72.  Before  closing  this  action,  we  may  recall  to  our  remem- 
brance the  case  of  Talbot  v.  Tipper,  where,  as'  we  have  seen,  un- 
der a  power  "  to  lease  with  or  without  fine,  and  rendering  such 
rents  and  services  as  the  donee  should  think  fit,"  it  was  deter- 
mined that  no  rent  whatever  need  be  reserved. (&) 

73.  In  Audley  v.  Audley,  the  power  in  a  settlement 
was,  *that  the  husband  should  have   power  to   make   [  *430  ] 
leases  "  for  a  provision  of  anything  he  should  have,  or 
otherwise  as   he  should  direct ;"    and  it   seems   to   have  been 
declared  to  be  for  the  benefit  of  the  younger  children.     Lord  C. 

(z)  Doe  V.  Lock,  2  Adol.  &  Ell  705. 
(a)  S.  C. 

(6)  Vide  supra,  vol.  1,  p.  522;  Musketry  v.  Chinnery,  Lloy.  &  Goo.  t.  Sugd.  185; 
7  Cla.  &  Fin.  1 ;  2  Jebb  &  Sy.  300;  supra,  vol.  1,  p.  523.   ' 


884 


SUGDEN  ON  POWERS. 


J.  Hale  declared  the  power  good,  and  that  a  lease  made  by  force 
of  it  to  trustees  for  ninety-nine  years,  if  several  of  his  children 
should  so  long  live,  in  trust,  reserving  as  a  rent  two-thirds  of  the 
yearly  value,  was  valid  ;  and  it  was  so  decreed  in  the  Court  of 
Chancery. (c) 

74.  By  the  4  Will.  4,  c.  22,(c?)  it  is  provided  that  all  rents  re- 
served by  any  lease,  granted  under  any  power  after  the  passing 
of  the 'act,  shall  be  apportioned  for  the  benefit  of  the  personal 
representatives  of  any  person  interested  in  such  rents. 


[  *431  ]  'SECTION  VII. 

OF   THE   COVENANTS   AND   CONDITIONS   TO   BE   OBSERVED. 


Power  to  lease  for  new  building,  or 
for  rebuilding  and  repairing:  Doe 
V.  Wethera. 

Observations  thereon. 

Where  covenant  by  the  lessor  to  re- 
pair, &o.  binds  the  inheritance. 

Ancient  boons  required  to  be  reserv- 
ed, includes  covenants. 

And  omission  of  old  covenant  to  pay 
taxes  bad. 

Heriots  improperly  reserved. 
'  Improper  covenant  binding  the  rever- 
i      sion  avoids  the  lease. 

Void  lease  not  supported  because  les- 
see has  done  what  ought  to  have 
been  required. 

Lessee's  covenants  enure  to  remain- 
der-man. 

Although  not  required  by  the  power. 

So  a  power  of  re-entry. 

And  covenants  by  a  lessor  run  with 
the  land. 

Debt  lies  against  the  lessee. 


1.  In  considering  what  is  required  by  a  power  of  leasing,  we 
should  bear  in  mind  that  rent,  heriots,  suit  of  mill,  and  suit  of 


1. 

Reservations  and  exceptions. 

27. 

2. 

Exception  not  a  reservation. 

4. 

Reasonable  time  may  be  allowed  for 

re-entry,    althougli    the   power   is 

28. 

silent. 

30. 

5. 

}  So  it  may  be  qualified  by  lawful  de- 

13. 

3      mand,  and  no  sufficient   distress. 

31. 

6. 

Coxe  V.  Day. 

7. 

Lord  Jersey's  case. 

32. 

11. 

Coxe  V.  Day  overruled  by  Lord  Jer- 

sey's case. 

33. 

17. 

If  no  overt  distress  good. 

29. 

18. 

Period  fixed  by  power  may  be  short- 

34. 

ened. 

35. 

19. 

Where  qualifications  are  confined  to 
one  class  of  leases. 

20. 

Power  to  commit  waste  contrary  to 
prohibition,  lease  void. 

37. 

•21, 

Counterpart. 

38. 

22. 

>  What  covenants  are  required  where 

39. 

23. 

)      power  is  silent. 

40,- 

24. 

Usual  covenants  required  must  be  in- 

41. 

serted. 

41. 

26. 

Covenants  to  build  necessary  where 
building  lease  is  to  contain  reason- 
able covenants. 

(c)  2  Cha.  Rep.  82. 

{d)  Sect.  2  (16  June,  1834.) 


FORM   OF  THE   POWER   OF  RE-ENTRY.  385 

court,  are,  according  to  the  legal  sense  and  meaning  of  the  word, 
reservations.  A  privilege  to  the  lessor  to  hawk,  hunt,  fish  or 
fowl,  is  not  either  a  reservation  or  an  exception  in  point  of  law. 
A  right  to  the  lessor  to  cut  and  carry  away  the  timber,  or  to  have 
the  property  in  it  or  in  mines,  is  not  a  reservation,  but  an  excep- 
tion, (e) 

*2.  In  a  case  where  the  ancient  rent  and  reservations  [  *482  ] 
were  required,  it  was  held  that  as  there  were  other 
legal  reservations  besides  rent,  to  satisfy  the  words  "  rent  and 
reservations,"  matters  which,  in  point  of  law,  were  the  subject  of 
exception,  could  not  be  deemed  a  reservation.  The  Court  observ- 
ed that  it  might  be  said,  that  if  the  person  who  creates  the  power 
uses  the  word  "  reserving"  in  such  a  way  as  to  make  an  exception 
a  reservation,  it  must  be  so  taken,  but  they  thought  not  necessa- 
rily. Powers  in  many  respects  are  construed  so  very  strictly, 
that  they  must  be  so  throughout. (/)  The  true  rule,  no  doubt  is. 
that  the  words  must  be  read  in  their  proper  legal  sense,  unless 
the  creator  of  the  power  has  imposed  a  different  meaning  upon 
them,  which  is  apparent  upon  the  face  of  the  instrument,  in  which 
case,  as  there  is  no  magic  in  words,  his  sense  must  be  adopted. 
But  if  the  words  are  unexplained  and  there  is  sufficient  to  satisfy 
them  in  their  legal  sense,  they  must  be  confined  to  that  meaning. 
This  was  the  point  decided  in  Doe  v.  Lock. 

8.  In  the  usual  power  of  leasing,  besides  the  reservation  of  the 
best  rent,  it  is  generally  required  that  the  lessee  covenant  for  i^.^ 
payment  of  the  rent ;  that  a  clause  be  inserted  for  re-entry  in 
default  of  payment ;  that  the  lessee  be  not  made  dispunishable  of 
waste  ;  and  that  he  execute  a  counterpart  of  the  lease  :  and  if  any 
of  these  conditions  be  not  complied  with,  the  lease  will  be  void. 
.  4.  It  should  never  l)c  stated  generally  that  a  clause  of  re-entry 
shall  be  contained  in  the  lease,  but  it  should  be  expressly  stated 
liow  many  days  the  rent  must  be  in  arrcar :  the  usual  period  is 
twenty-one  days.  A  reasonable  time  may  however  be  inserted  in 
the  lease,  although  the  power  is  general  on  this  head.  In  the 
case  of  Jones  v.   Verney(^)  this  was  done,  and  no  objection 

(e)  Doe  V.  Lock,  2  Add.  &  Ell.  705. 
(/)  Doe  V.  Lock,  2  Adol.  &  Ell.  705. 

{g)  Willes,  169.    See  Higgins  v.  Lord  Rosse,  3  Bligh,  112;  Rutland  v.  Doe,  5 
Mees.  &  Wels.  694. 

Vol.  II.  33 


386  SUGDEN  ON  POWERS. 

[  *433  ]  appears  to  have  been  made  *on  that  ground,  although 
the  case  was  much  considered  ;  and  it  is  now  a  settled 
point  that  a  reasonable  time  may  be  allowed,  and  the  law  will 
take  notice  of  what  is  a  reasonable  period. (//) 

5.  In  the  case  of  Hotley  v.  Scot,(2)  the  power  required  the 
insertion  in  the  leases  of  a  clause  of  re-entry  on  non-payment  of 
the  rent  for  twenty-one  days.  A  lease  was  made  with  a  power  of 
re-entry  in  case  the  rent  should  be  behind  for  twenty-one  days, 
havins;  been  lawfully  demanded .,{jt)  or  no  sufficient  distress. 
There  the  power  prescribed  the  time,  and  that  Avas  followed  by 
the  lease,  but  the  qualifications  above  mentioned  were  added, 
although  the  power  was  silent  in  that  respect.  In  support  of  the 
lease,  it  was  argued  that  nothing  was  added  but  what  came  in  by 
force  of  law,  or  followed  upon  a  deficiency  of  the  vague  and  not 
sufficiently  explicit  words  of  the  power.  Is  not  rent,  it  was  asked, 
always  to  be  demanded  before  a  distress  becomes  liable,  or  a  for- 
feiture incurred  ?  And  as  to  the  other,  if  th-ere  be  a  suflicient 
distress,  what  then  ?  The  rent  will  Ix)  recovered  without  re-en- 
try ;  and,  neither  in  reason,  equity,  or  conscience,  could  there  be 
any  other  intent  of  the  original  power.  And  Lord  Mansfield  said, 
that  as  to  demand,  a  clause  of  re-entry  was  required  as  a  security 
for  the  rent :  demand  is  requisite  both  by  common  law  and  statute  : 
a  clause  of  re-entry  will  never  be  allowed  to  operate  furtlver  thai> 
as  a  security  for  rent.  A  re-entry  is  to  enforce  the  payment  of 
rent;  it  is  an  immediate  forfeitm-e  of  the  estate  by. common  law; 
by  statute  it  cannot  be  without  a  want  of  distress.  According  to 
another  report  he  said,  the  clause  of  re-entry  [in  the  power']  is 
short,  with  words  of  course,  and  does  not  preclude  the  operation 
of  law.  The  effect  of  this  decision  is,  that  if  the  remain- 
[  *434  ]  der-man  should  re-enter  for  non-pa}anent  *of  rent,  he 
might  be  turned  round,  unless  he  had  searched  every 
corner  for  a  sufficient  distress. (/)  Such  a  condition,  therefore, 
is  a  serious  restraint  upon  him,  but  it  is  similar  to  that  prescribed 
by  the  4  Geo.  2,  c.  28. 

(A)  Cases  infra. 

(i)  Lofft,  31G;  nom.  Lord  Tankcrville  v.  Wingfield,  2  Brod.  &  Bing.  498;  S.  C, 
7  Price,  343;  3  Bligh,  331  n.;  and  5  Moore,  346  n. 
(fc)  Qu.  see  the  reports. 
(/)  See  Rees  v.  King,  For.  Excheq.  Rep.  19. 


FORM   OF  THE   POWER   OF   RE-ENTRY.  387 

6.  In  the  later  case  of  Coxe  v.  Day,(m)  the  power  of  leasing 
required  the  best  rent,  and  that  tliere  should  be  contained  a  con- 
dition of  re-entry  for  non-payment  of  the  rent  by  the  space  of 
twenty-one  days.  A  lease  granted  under  the  power  contained  a 
power  of  re-entry,  if  the  rent  should  be  twenty  days  in  arrear, 
being  lawfully  demanded,  and  no  sufficient  distress,  so  that  the 
case  was  in  no  respect  distinguishable  from  that  of  Hotley  and 
Scot.  That  case,  however,  was  not  cited,  and  the  Court  of  King's 
Bench  were  of  opinion  that  the  power  of  re-entry  was  not  war- 
ranted by  the  power,  and  that  the  lease  was  void  on  that  ground. 

7.  In  the  still  later  case  of  Doc  v.  Smith, (%)  in  a  strict  settle- 
ment, there  was  a  power  of  leasing  such  parts  of  the  estates  as 
were  then  leased  for  life  or  lives,  or  for  years  determinable  on  the 
dropping  of  a  life  or  lives,  to  any  person  or  persons  in  possession 
or  reversion  for  one,  two,  or  three  lives,  or  for  any  number  of 
years  determinable  on  the  dropping  of  one,  two,  or  three  lives,  at 
the  ancient  and  accustomed  yearly  rents,  duties,  <fec.,  or  more,  or 
as  great,  or  beneficial  rents,  duties,  <S:c.,(o)  as  then  were,  or  at 
the  time  of  demising  should  be  reserved ;"  and  then  follows  the 
clause,  "And  so  as  there  be  contained  in  every  such  lease  a  power 
of  re-entry  for  non-payment  of  the  rent  thereby  to  be  reserved." 
This  power  related  only  to  lands  then  let  for  lives,  or  for  years 
determinable  on  lives.     Tliere  was  another  power  "  To 

demise  all  the  estates  for  any  term  aljsolute,  not  *exceed-  [  *435  ] 
ing  twenty-one  years,  in  possession,  &c.,  at  as  much  or 
as  great  and  beneficial  yearly  and  other  rents  as  then  were  paid, 
or  the  best  and  most  improved  yearly  rent,  &c.,  and  so  as  in  every 
such  lease  for  any  term  of  years  absolute  respectively,  there  be 
contained  a  clause  of  re-entry,  in  case  the  rent  or  rents  tliereupon 
to  be  reserved  be  behind  or  unpaid  by  the  space  of  twenty-eight 
days  after  the  time  thereby  respectively  appointed  for  payment 
thereof."  Mr.  Yernon  was  tenant  for  life,  and  the  premises  in 
question  had  been  formerly  let  for  years  determinable  on  lives  ; 
and  he  made  a  lease,  which  contained  a  power  of  re-entry^  ",  if  it 

(«i)  Coxe  V.  Day,  13  East,  118.  See  Doe  v.  Meyler,  2  Mau.  &  Sdw.  276;  and  2 
Bred.  &  Bing.  530.  539. 

(n)  1  Brod.  &  Bing.  97,  2d  vol.  473;  7  Price,  281;  5  Mau.  &  Selw.  4G7;  3Moore, 
339;  5  Moore,  332;  3  Bligh,  290. 

(o)  See  Lord  Eldon's  opinion  on  these  words,  2  Brod.  &  Bing.  607;  and  see  p. 
587,  ib. 


388  SUGDEN  ON   POWERS. 

shall  happen  that  the  rent  of  2Z.,  and  every  or  any  of  the  duties, 
services,  (fee.  shall  be  behind  or  unpaid,  in  part  or  in  all,  by  the 
space  of  fifteen  days  next  over  or  after  the  times  whereat  or 
wherein  the  same  ought  to  be  paid,  &c.,  and  no  svjjicient  distress 
or  distresses  can  or  may  be  had  and  taken  upon  the  said  premises, 
whereby  the  same,  and  all  arrearages  thereof  (if  any  be)  may  be 
fully  raised,  levied,  andpaid.^'  And  the  lease  closed  with  a  gen- 
eral clause,  that  if  any  default  shall  be  made  in  the  payment  or 
performance  of  all  or  any  of  the  reservations,  covenants,  or  agree- 
ments before  contained,  it  shall  be  lawful  for  the  lessors,  their 
heirs  or  assigns,  to  re-enter. (I)  The  rent,  duties,  reservations 
and  })aymcnts,  were  the  ancient  and  accustomed,  and  the  usual 
and  accustomed  form  of  leases  of  the  estate  contained  in  the  said 
marriage  settlement  for  lives  or  years  determinable  on  lives,  as 
well  prior  as  subsequent  to  that  settlement,  was,  with  a  condition- 
al proviso  of  re-entry  similar  to  that  in  the  said  indenture  of  lease. 
9,  Now  the  distinction  between  this  case  and  the  preceding 
cases  was,  that  although  here  in  one  power,  as  in  the  other  cases, 

the  number  of  days  which  the  rent  was  required  to  be 
[  *436  ]  in   arrear  in   order  to  give  a  right  of  re-entry  *was 

stated,  and  the  power  was  silent  as  to  a  want  of  suffi- 
cient distress,  yet  the  power  upon  which  the  question  arose  simply 
required  a  power  of  re-entry  for  non-payment  of  rent,  without 
saying  more  ;  and  the  variance  between  the  two  powers  in  the 
same  settlement  raised  a  considerable  argument.  It  was  held  in 
the  King's  Bench  by  Lord  Ellenborough  and  Mr,  Justice  Bay- 
ley,  (j»)who  had  concurred  in  the  decision  in  Coxe  v.  Day,  that  the 
lease  was  authorized  by  the  power.  It  was  silent  as  to  the  time 
it  should  be  carried  into  effect,  and  being  so  silent,  why,  they 
asked,  should  it  not,  in  virtue  of  such  silence,  be  intended  that  the 
creator  of  the  power  thought  it  enough  to  require  that  there 
should  be  some  reasonable  power  of  re-entry  for  non-payment  of 
rent  upon  every  lease,  leaving  it  to  the  discretion  of  the  person  by 
whom  it  should  be  granted  to  prescribe  when  and  under  what  cir- 
cumstances that  power  of  re-entry  should  in  each  particular  case 
be  enforced  ?     And  they  thought  that  tlie  discretion,  which,  upon 

(/>)  Doe  V.  Sinitli,  5  Mau.  &  Selw.  467. 

(I)  Upon  tbis  clause  no  reliance  was  placed  by  either  party. 


FORM    OP   THE   POWER   OF   RE-ENTRY.  389 

such  construction,  was  necessarily  left  to  the  person  who   was 
the  object  of  the  power,  had  been  well  exercised. 

10.  In  the  Court  of  Exchequer  Chamber,  Garrow,  B,,  Wood, 
B,,  and  Graham,  B.,  were  of  opinion  with  the  decision  in  the 
King's  Bench;  but  Burrough,  J.,  Park,  J.,  Richards,  C.  B,,  and 
Dallas,  C.  J.,  were  of  a  contrary  opinion.  Each  side  relied  on 
the  lease  for  twenty-one  years  being  required  to  be  made  with  a 
clause  of  re-entry  in  case  the  rent  should  be  behind  twenty-eight 
days.  On  the  one  hand  it  was  used  as  evidence  that  the  term  in 
the  first  power  was  left  to  the  discretion  of  the  donee  ;  on  the 
other,  that  the  power  of  re-entry  under  the  first  clause  was  to  be 
immediate.  The  judgment  in  the  Exchequer  Chamber  was  re- 
versed upon  appeal  to  the  House  of  Lords  ;  Richardson, 

J.,  Burrough,  J.,  Holroyd,  J.,  Park,  J.,  *Dallas,  C.  J.,  [  *437  ] 
were  against  the  validity  of  the  lease  ;  and  Best,  J., 
Garrow,  B.,  Bayley,  J.,  Wood,  B.,  Graham,  B.,  Richards,  C.  B,, 
(who  had  changed  his  opinion,)  Abbott,  C.  J.,  the  Lord  Chancel- 
lor, and  Lord  Redesdale,  were  in  favour  of  its  validity.(^) 

11.  Li  the  discussion  of  this  case  in  the  Exchequer  Chamber, 
and  in  the  House  of  Lords,  the  cases  of  Hotley  and  Scot,  and 
€oxe  and  Day,  were  minutely  examined.  Mr.  Justice  Bayley, 
the  surviving  Judge  before  whom  Coxe  and  Day  was  decided, 
supported  his  opinion  in  Doe  and  Smith  in  the  House  of  Lords, 
and  stated  that  the  opinion  would  not  trench  on  Coxe  v.  Day,  on 
the  ground,  no  doubt,  that  as  the  power  prescribed  a  particular 
form*  of  re-entry,  no  other  qualification  could  be  annexed.  It  was 
agreed  by  nearly  all  the  Judges  that  Hotley  and  Scot,  and  Coxe 
and  Day  were  opposed  to  each  other.  Most  of  the  Judges  who 
opposed  the  validity  of  the  lease  in  Doe  v.  Smith  relied  upon 
Coxe  V.  Day  as  an  authority,  and  considering  that  case  as  not , 
distinguishable  from  the  one  before  them,  they  preferred  the  de- 
cision in  Coxe  v.  Day.  The  Judges  in  favour  of  the  validity  of 
the  lease  generally  treated  Coxe  v.  Day  as  not  well  decided,  al- 
though some  referred  to  the  distinction  between  the  powers  in  the 
two  cases.  Lord  Eldon,  C,  treated  Hotley  and  Scot  as  opposed 
to  Coxe  and  Day,  and  the  judgment  of  Lord  Ellenborough,  and 
Bayley,  J.,  in  Doe  v.  Smith,  as  conflicting  with  Coxe  v.  Day. 

iq)  7  Price,    281;  2  Brod.  &  Biug.  473;  3  Bligh,  290;  and  see  Doe  v.  Wilson,  6 
Barn.  &  Aid.  863;  Bowes  v.  E.  L.  Water  Works,  Jacob,  330. 

33* 


390  SUGDEN   ON   POWERS. 

Richards,  C.  B.,  stated  in  the  House  of  Lords,  that  his  opinion 
-had  always  been  for  extension  of  time,  but  that  he  had  originally 
held  the  lease  bad,  because  of  the  clause  "■  if  no  sufficient  dis- 
tress/' Lord  Eldon,  with  reference  to  the  old  leases  and  the 
terms  of  the  power,  observed,  that  he  could  not  help  expressing 
that  he  entertained  very  considerable  doubt  whether  if  this  clause 
as  to  the  distress  had  not  been  contained  in  the  new  lease,  the  new 
lease  for  that  reason  would  not  have  been  bad. 

12.  The  result  appears  to  be  that  Coxe  v.  Day  is  over- 
[  *488  ]  ruled,  *and  that  where  the  power  is  silent  as  to  time 

and  conditions,  as  in  Doe  and  Smith,  a  reasonable  time 
and  circumstances  may  be  introduced  into  the  clause  of  re-entry 
— as  in  that  case  fifteen  days,  and  no  sufficient  distress — or  as  in 
a  later  case  forty-two  days(r) — and  that  if  the  power  expresses 
the  time,  although  that  prevents  further  time  from  being  allowed 
yet  a  reasonable  qualification  may  be  introduced  into  the  clause 
of  re-entry,  e.  g.  a  want  of  sufficient  distress,  as  in  Hotley  and 
Scot. 

13.  In  a  later  case  it  was  decided  that  under  such  a  power  as 
that  in  Doe  v.  Smith,  not  only  may  a  reasonable  time  be  allowed 
— e.  g.  twenty-eight  days,  wliich  was  the  period  allowed  in  an  old 
lease — but  that  it  is  no  objection  to  a  lease  under  the  clause  of 
re-entry  on  non-payment  of  the  rent  is  qualified  by  the  words  "  be- 
ing lawfully  demanded."  These  words  were  found  in  the  case  of 
Coxe  V.  Day,  and  perhaps  in  Hotley  and  Scot.  No  objection  ap- 
pears to  have  been  made  to  the  introduction  of  that  qualification 
in  Coxe  v.  Day. 

14.  In  the  case  to  which  I  refer  it  was  also  decided  that  a  quali- 
fied power  to  distrain,  which  had  been  contained  in  old  leases, 
and  which  did  not  take  away  the  landlord's  common-law  right, 
did  not  vitiate  the  lease.  The  case  is  Doe  v.  Wilson,(5)  w^here 
the  power  in  a  private  act  of  parliament  required  the  usual  rents, 
&c.,  and  that  in  every  lease  there  should  be  contained  a  condition 
of  re-entry  for  non-payment  of  the  rent :  the  lease  granted  under 
the  power  contained  a  power  of  distress  if  the  rent  should  not  be 
paid  at  the  days  and  times  aforesaid,  or  if  the  said  amerciaments, 

(r)  Doe  Y.  Rutland,  2  Mees.  &  Wels.  661. 

(^)  5  Barn.  &  Aid.  863.     gee  2  Brod.  &  Bing.  504. 


FORM   OP   THE   POWER   OP   RE-ENTRY.    •  391 

pains,  fines,  and  penalties,  nomine  pasnce^  after  reasonable  demand 
in  that  respect  made,  should  not  be  paid  and  satisfied,  and  a 
power  of  re-entry  in  case  the  rent  shall  be  behind  or  unpaid  by 
the  space  of  twenty-eight  days,  being  lawfully  demand- 
ed. In  a  lease,  granted  before  the  act,  there  *was  a  [  *439  ] 
power  of  re-entry  upon  the  rent  being  behind  for  twenty- 
eight  days,  upon  its  being  lawfully  demanded,  and  no  sufficient 
distress  found  upon  the  premises,  and  there  was  a  power  to  dis- 
train, similar  to  that  in  the  lease  granted  under  the  power.  The 
Court  in  giving  judgment  said  that  two  objections  were  made  to 
this  lease.  The  first  objection  was,  that  the  clause  enabling  the 
landlord  to  distrain  was  a  restriction  upon  him,  and  injurious  to 
the  remainder-man  ;  for  it  is  said  that  under  this  power  he  cannot 
distrain  without  making  a  demand,  and  when  he  has  made  the 
distress,  that  he  cannot  sell.  Now,  if  this  objection  avoid  the 
lease,  it  must  do  so,  not  by  reason  of  its  contravening  any  particu- 
lar contained  in  the  leasing  power,  but  by  reason  of  its  being  con- 
trary to  its  general  nature  and  object,  which  is,  that  there  should 
be  a  lease  at  a  yearly  rent,  with  the  usual  and  beneficial  modes  of 
enforcing  payment.  It  is  to  be  observed,  that  the  clause  itself  re- 
fers, not  merely  to  the  payment  of  the  rent  of  50/.,  but  to  pay- 
ments in  nomine  poence ;  the  words  are,  "  If  it  shall  liappen  the 
said  yearly  rent  or  sum  of  50/.  shall  not  ])e  paid  at  the  days  and 
times  aforesaid,  or  if  the  said  amerciaments,  pains,  fines  and 
penalties,  in  nomine  pcencc,  after  reasonable  demand,  be  not  paid, 
then  the  lessor  may  distrain."  It  appears,  however,  that  this 
clause  was  copied  from  a  lease  of  1708,  and  they  ought  to  pause 
before  they  held  that  such  a  clause,  copied  from  the  former  lease 
(and  which  the  party  who  prepared  the  instrument  after  the  act 
of  parliament  probably  had  before  him,)  vitiates  this  lease.  The 
Court  could  not  think,  however,  that  tlie  landlord  was  abridged 
by  this  clause  of  any  remedy  for  the  recovery  of  his  rent  which  he 
otherwise  would  have  had.  Indc})endently  of  this  clause,  the  land- 
lord had  a  power  to  distrain  and  a  power  to  sell  under  the  dis- 
tress. And  tliey  could  not  give  such  an  effect  to  the  language  of 
this  clause  as  to  say  that  it  was  intended  to  deprive  the  landlord 
of  any  power  which  he  had  by  the  common  and  statute 
law.  The  true  construction  of  it  'appeared  to  be  to  con-  [  *440  ] 
sider  it  as  introduced  in  furtherance  of  the  power  under 


392  SUGDEN   ON   POWERS. 

the  comiiioii  law  ;  and  tlioy  thought  that  they  could  not  give  it 
the  construction  contended  for,  unless  they  saw  clearly  that  the 
landlord  at  the  time  of  granting  it  intended  to  take  away  the 
power  under  the  common  law. 

15.  The  second  objection  was  as  to  the  right  of  re-entry.  It 
was  said  this  was  to  be  only  at  the  end  of  twenty-eight  days  after 
the  rent  was  in  arrear,  and  the  same  "  being  lawfully  demanded."' 
Now  as  to  tiic  right  of  re-entry  not  accruing  till  the  expiration  of 
a  given  number  of  days,  the  case  of  Doe  v.  Smith  was  directly  in 
point.  It  was  there  decided  that  the  words  contained  in  this 
power,  "  so  tliat  there  be  conditions  of  re-entry  for  non-payment 
of  rent,"  are  to  be  interpreted  to  mean  a  usual  or  reasonable  con- 
dition of  re-entry  ;  and  if  that  be  so,  it  appears  from  the  lease  of 
1708  that  twenty-eight  days  are  there  given  for  the  payment  of 
the  rent  before  the  landlord  can  re-enter ;  with  this  additional 
clause  in  favour  of  the  tenant,  that  if  there  be  no  sufficient  dis- 
tress upon  the  prem.iscs  the  landlord  may  then  re-enter. 

16.  Another  objection  was,  that  by  the  terms  of  this  lease  the 
landlord  was  "  to  re-enter  on  the  rents  being  lawfully  demanded  ;" 
and  it  was  said  that  this  puts  the  landlord  to  the  necessity  of 
making  the  demand,  notwithstanding  the  statute  4  Geo.  2,  c.  28, 
which  was  made  generally  for  the  purpose  of  relieving  the  land- 
lord from  the  necessity  of  making  that  demand.  In  Doe  dem. 
Schofield  V.  Alexander  three  of  the  judges  of  this  Court,  Lord 
EUenborough,  C.  J.,  rather  doubting  than  dissenting,  decided, 
that  notwithstanding  the  words  "  lawfully  demanded"  in  a  lease, 
the  landlord  has  a  right  to  the  benefit  of  the  statute  of  4  Geo.  2, 
c.  28,  and  may  re-enter.  The  Court  were  of  that  opinion.  By 
the  common  law  the  landlord  never  could  re-enter  without  making 
a  demand.  Every  clause  of  re-entry,  therefore,  contained  the 
words  lawfully  demanded"  in  effect  though  not  in  terms,  and 

therefore  in  the  lease  of  1708  those  words  were  quite 
[  *441  ]  *nugatory  ;    they  were  probably  copied  inadvertently 

into  the  subsequent  leases  without  considering  their 
effect.  They  were  of  opinion  that  such  a  proviso  for  re-entry, 
which  was  originally  introduced  for  the  benefit  of  the  landlord, 
ought  not  to  be  construed  in  consequence  of  the  introduction  of 
those  words  (which  were  nugatory  in  the  former  leases)  to  de- 
prive the  landlord  of  the  benefit  intended  to  be  conferred  upon 


FORM   OP  THE   POWER   OF   RE-ENTRY.  393 

him  by  the  statute  4  Geo.  2,  c.  28.  The  case  might  have  been 
otherwise  if  the  lease  had  contained  an  express  covenant  that  he 
would  not  re-enter  without  demand,  or  that  having  entered,  he 
would  not  sell. 

17.  And  although  the  like  conditions,  &c.  as  in  the  old  leases 
arc  required  and  the  re-entry  there  was  if  the  rent  were  twenty- 
one  days  in  arrear  and  no  suJEcieut  overt  distress,  yet  a  power  of 
re-entry  if  the  rent  were  in  arrear  and  no  sufficient  distress  will 
be  valid.  The  law,  it  was  said,  recognises  a  difference  between  a 
pound  overt  and  a  pound  covert,  but  as  to  a  distress  the  law  does 
not  fix  any  meaning  to  the  word  overt.  Is  overt  to  be  confined 
to  what  may  be  seen  by  walking  over  the  lands  and  farm-yard 
without  going  into  any  inclosed  buildings  ;  or  does  it  extend  to 
what  may  be  seen  by  opening  the  outer  doors  of  a  house  or  other 
buildings  :  or  what  may  be  seen  by  opening  inner  doors  :  or  by 
opening  cupboards,  chests,  and  boxes,  which  are  not  concealed 
and  have  no  locks ;  or  various  other  shades  being  less  overt  ? 
So  many  opinions  might  be  formed  about  the  extent  of  the  mean- 
ing of  the  word,  that  the  court  could  not  attribute  any  legal  mean- 
ing to  it.(^) 

18.  Where  a  period  is  specified  in  the  power  for  the  re-entry, 
although  it  cannot  be  exceeded,  yet  it  may  be  restricted.  In 
Coxe  v.  Day,  the  power  stated  twenty-one  days  in  arrear,  the 
clause  of  re-entry  stipulated  for  twenty  days,  but  no  objection  to 
the  lease  was  made  upon  this  ground  ;  (u)  and  in  the 

late  case  of  Doe  v.  Lock,  it  was  held  *that  the  provision  [  *442  ] 
was  more  beneficial  to  the  remainderman,  and  therefore 
valid.  (:l-) 

19.  In  Doe  v.  Colmau(//)  a  power  of  leasing  was  given  by  will 
to  demise  the  estates  devised  in  manner  following  ;  viz.  such  parts 
of  the  said  premises  as  had  been  usually  granted  or  demised,  and 
were  then  in  lease  for  any  term  of  years  determinable  upon  lives, 
to  any  persons  for  the  like  terms,  and  in  like  manner,  and  under 
the  like  rents,  services  and  conditions  as  the  same  had  been  usually 
granted  ;  and  the  residue  of  the  same  premises  unto  any  persons 

(0  Dee  V.  Lock,  2  Adol.  &  Ell.  705. 

(u)  13  East,  118. 

(x)  2  Adol.  &  Ell.  705. 

(1/)   1  BiDg.  28,  and  7  Moore,  271. 


394  SUGDEN  ON   POWERS. 

for  any  term  of  years,  not  exceeding  twenty-one  years,  in  posses- 
sion, at  the  best  and  most  improved  rent  that  could  be  reasonably 
gotten  for  the  same,  so  as  that  no  such  demise  or  lease  should  be 
made  dispunishaljle  of  waste,  nor  without  a  condition  of  re-entry 
on  non-payment  of  the  rent  or  services  thereby  reserved,  and  so  as 
each  lessee  should  execute  a  counterpart  of  his  or  her  lease  ;  and 
it  was  held  that  tlie  word  such  in  the  will  was  confined  to  the  lat- 
ter class  of  leases,  and  could  not  be  thrown  back  to  the  class  first 
described. 

20.  If,  contrary  to  the  clause,  that  the  lessee  be  not  made  dis- 
punishable of  waste,  ho  be  empowered  to  work  unopened  mines,(2) 
fell  trees,  or  do  any  other  act  which  amounts  to  waste,  the  lease 
will  be  void,  unless  indeed  in  the  case  of  a  building  lease,  where 
it  should  -seem  the  clause  would  be  deemed  repugnant  to  the  power 
itself,  and  the  lessee  might  pull  down  old  buildings,  <fec.  in  order 
to  erect  new  ones  :(a)  and  the  general  nature  of  the  power  may 
be  such,  where  there  is  no  restraint  upon  waste,  as  to  authorize 
the  donee  to  make  tlie  lessee  dispunishable  of  waste. (6) 

21.  Where  a  counterpart  is  required  to  be  executed,  the  lessee 

should  o])tain  a  memorandum  of  its  execution  and 
[  *-l:43  ]  *dclivery  to  the  lessor,  to  be  endorsed  on  the  lease,  and 
signed  by  the  lessor,  for  the  counterpart  itself  is  of 
course  delivered  to  the  lessor,  and  if  it  should  be  lost  or  suppressed, 
the  lessee  would  be  in  danger  of  losing  the  estate  unless  he  could 
prove  the  execution  of  it.  Besides,  without  this  precaution,  a  pur- 
chaser from  the  lessee  cannot  be  satisfied  that  the  power  was  duly 
executed,  for  the  lessor  may  refuse  to  discover  whether  a  counter- 
part was  executed.  The  execution  of  the  counterpart  need  not, 
of  course,  be  contemporaneous  with  the  lease, (c)  but  still  it  must 
be  executed  within  a  period  which  may  fairly  be  considered  a> 
y.       comprehended  in  the  transaction. 

vjt         22. fin.  the  case  of  Taylor  v.  Horde, (f/)  where  the  power  re- 
/'''''^quired  the  best  rent  to  be  reserved,  payable  during  the  term,  bul 

(z)  Campbell  v.  Leach,  Ambl.  740. 
(a)  See  Jones  v.  Verjaey,  Willes,  1G9. 

(6)  Muskerry  v.  Chinnery,  Lloy.  &  Goo.  temp.  Sugd.  185,  App.  No.  18  supra. 
Sheehy  v.  Muskerry,  7  Cla.  &  Fin.  1 ;  Muskerry  v.  Sheehy,  2  Jebb  &  Sym.  300. 

(c)  Fryer  v.  Combs,  11  Aaol.  &  Ell.  403. 

(d)  1  Burr.  60. 


OP   POWER  TO   COMMIT   WASTE.  395 

was  silent  as  to  any  covenant  for  payment  of  rent,  clause  of  re- 
entry, or  counterpart,  and  a  lease  was  executed  in  which  none  of 
these  things  were  oTjserved,  Lord  Mansfield  considered  the  lease 
void,  because  it  was  merely  nominal,  and  not  executed  by  the 
lessees  ;  but  he  proceeded  to  consider  the  effect  of  the  omission. 
He  said,  that(e)  as  to  the  rent  reserved,  the  power  requires  "  the 
best  rent  that  can  be  reasonably  got,  to  be  reserved  payable  during 
the  term."  There  is  no  covenant  for  parent.  Under  a  mere 
reservadon  it_could  not  be  payable  till  entry;  and  therefore 
in  fact  might  never  be  payable  during  the  term.  As  to  the 
remedy,  there  being  no  covenant  to  pay  the  rent,  the  lease  might 
be  assigned  to  a  succession  of  beggars.  There  being  no  clause  of 
re-entry,  the  ground  might  lie  unoccupied  without  any  or  not 
sufficient  distress  upon  it,  so  that  the  remainder-man  could  neither 
have  his  rent  nor  his  land.  There  is  no  counterpart ;  an  unusual 
omission,  and  very  prejudicial.  Therefore  the  lease  could  not  have 
been  supported  if  it  had  been  executed  by  the  lessees,  which  is  not 
the  case.  Every  fraudulent  unfair  execution  of  such  a  power,  in 
respect  of  those  in  remainder,  is  void  at  law. 

*23.  But  where  the  power  does  not  require  any  par-  [  *444  } 
ticular  covenants  to  be  contained  in  the  lease,  the  ques- 
tion must  be,  not  whctlier  a  particular  covenant'  is  omitted,  but 
whether,  as  Lord  Mansfield  means  to  put  the  case,  the  lease  is  a 
fraudulent,  unfair  execution  of  the  power.  The  common  form 
only  states  the  term,  and  requires  the  intended  rent,  and  prohibits 
the  lessee  from  being  made  dispunishable  of  waste,  but  is  equally 
silent  as  to  the  covenant  as  the  power  was  in  Taylor  v.  Horde  ; 
and  yet  leases  with  very  difterent  covenants,  although  under  simi- 
lar powers,  if  fairly  made,  have  in  all  times  been  supported. 
Where  the  ancient  or  accustomed  rent  is  required,  we  have  already 
seen  that  it  is  no  objection  to  a  lease  under  the  power,  and  it  does 
not  contain  the  same  covenants  as  were  inserted  in  the  former 
leases,  as  they  are  upon  the  whole  equally  beneficial  as  the  former. 
To  impeach  the  lease,  the  ground  must  be,  that  the  new  covenants 
are  a  fraud  on  the  power,  by  lessening  the  value  of  the  reserva- 
tion.(/) 

(e)  1  Burr.  125. 

(/)  Goodtitle  t.  Funucan,  Dougl.  565.    See  Earl  of  Cardigan  v.  Montagu,  App, 
No.  13. 


396  8UGDEN   ON   POWERS. 

24.  Sometimes  a  power  expressly  requires  the  leases  to  contain 
usual,  or  usual  and  reasonable  covenants,  or  the  like.  Where  the 
usual  covenants  are  required,  unless  tlie  covenants  contained  ia 
the  former  leases  arc  inserted  in  the  new  leases  they  cannot  be 
sustained  ;  as,  where  covenants  to  repair  ;  to  grind  corn  at  the 
lessor's  mill ;  not  to  cut  or  fell  coppices,  and  underwoods  ;  not  to 
put  any  cattle  into  the  coppices,  and  the  like  Avere  contained  in  the 
old  leases,  but  not  in  the  new  ones  granted  under  a  power  requir- 
ing (as  it  was  held)  the  accustomed  covenants  to  be  entered  into, 
the  new  leases  were  deemed  invalid  on  the  ground  that  these  cov- 
enants did,  in  their  nature,  tend  to  the  preservation,  management, 
and  improvement  of  the  premises  demised,  and  were,  for  that  rea- 
son, for  the  benefit,  advantage,  and  security,  not  only  of  the 
immediate    lessor,    but  likewise  of  all    persons  claiming  after 

him.(i,'') 
[  *44o  ]  *25.  In  Lord  Cardigan  and  Montagu  one  power  was 
to  lease  certain  iron-works  mentioned  in  a  certain  deed, 
(by  Avliich  they  were  agreed  to  be  demised  by  the  author  of  the 
power)  for  such  term,  and  under  snch  rents,  covenants,  and  agree- 
ments as  were  therein  contained,  or  to  any  person  from  time  to 
time,  for  any  term  not  exceeding,  &c.,  and  so  as  upon  every  such 
lease  there  be  reserved  such  re7its  or  payments,  or  more,  as  by  the 
said  deed  was  mentioned  and  agreed  to  be  reserved.  The  lease 
granted  under  the  power  reserved  the  proper  rents  and  payments, 
but  in  the  deed  referred  there  were  important  covenants  on  the 
part  of  the  lessee  for  repairing,  <fec. ;  and  no  such  covenant  on  the 
part  of  the  lessee  were  contained  in  the  new  lease,  which  was 
therefore  held  void.  The  framcr  of  the  lease  must  have  considered 
that  a  furtlior  lease  required  only  tlie  rents  stipulated  by  the  pow- 
er, and  not  the  covenants  as  they  were  repeated  in  the  so  as,  etc.  ; 
but  this  notice  was  properly  overruled,  although  the  power  was 
inaccurately  expressed.  (A) 

26.  In  Jones  v.  Verney,(i)  a  power  to  grant  building  leases  re- 
quired the  leases  to  contain  "  the  usual  and  reasonable  covenants." 
A  lease  was  made,  and  the  lessee  covenanted  to  keep  the  old 
messuage  and  buildings  on  the  land  in  repair,  and  to  repair  such 

{g)  Earl  of  Cardigan  v.  Nontagu,  App.  13  (4)  (7)  (8). 
(A)  App.  No.  13. 
(i)  Willes,  169. 


COVENANTS  IN  BUILDING  LEASES,   ETC.  397 

other  messuages  or  buildings  as  should,  during  the  term,  be  builf 
on  the  premises.  The  Court,  upon  the  whole,  thought  that  this 
was  not  a  building  lease  under  the  power ;  and  Lord  Chief  Jus- 
tice Willes  said  that  "  a  reasonable  covenant  in  a  building-lease 
must  certainly  be  meant  of  a  covenant  to  build  ;  but  there  was 
none  such  in  this  lease." 

27.  In  Doe  v.  Withers, (A:)  there  was  a  power  to  demise  "  for  the 
purpose  of  new  building  or  effectually  rebuilding  or  repairing,"  any 
messuage,  houses,  out  houses,  edifices,  or  buildings,  then 
standing  and  being,  or  thereafter  to  stand  *and  be,  upon  [  *446  ] 
the  estate,  at  as  much  rent  as  could  be  obtained  without 
a  fine.  There  was  another  power  of  leasing  at  rack-rent  for  twenty- 
one  years,  with  usual  covenants.  There  was  an  authority  to  a 
trustee  to  enter  and  repair,  if  any  tenant  for  life  neglected  to  keep 
the  estate  in  good  and  substantial  repair.  A  lease  was  made  under 
the  first  power,  and  the  lessee  covenanted  that  he  would  before  a 
day  named,  expend  in,  about  and  upon  the  premises  250/.,  at  least, 
for  the  purpose  of  effectually  repairing  the  said  demised  messuages 
and  premises,  and  putting  the  same  and  every  part  thereof  into 
complete  and  substantial  repair,  to  the  good  liking  of  the  lessor 
and  his  assigns,  &c.,  or  their  surveyor  ;  and  when  the  same  should 
be  so  Avcll  and  effectually  repaired  as  aforesaid,  would  sufficiently 
repair  the  same  during  the  term.  It  was  held  that  the  lease  was 
not  warranted  by  the  power.  There  were  two  objections  ;  1. 
That  the  power  authorized  only  a  lease  for  new  building  or  re- 
building as  well  as  repairing,  and  that  this  was  a  mere  repairing 
lease  ;  2.  That  if  a  mere  repairing  lease  would  be  valid,  yet  the 
power  required  it  to  be  for  effectually  repairing,  and  the  covenant 
was  limited  to  an  expenditure  of  250/.  Lord  Tenterden,  C.  J.. 
observed  that  the  conditions  had  not  in  substance  been  complied 
with.  "  Effectually  rebuilding  and  repairing"  must  mean  some- 
thing more  than  "  effectually  repairing."  The  first  might  be  un- 
derstood to  signify  repairing  those  parts  which  merely  needed  re- 
pair, so  that  they  might  stand  the  remainder  of  the  term,  and  re- 
Imilding  those  which  were  not  otherwise  repairable  ;  the  other 
might  imply  merely  putting  the  whole  into  the  best  state  which  its 
then  condition  allowed  of.     He  also  thought  that  the  stipulation 

(fr)  2  Barn.  &  Adol.  896. 

Vol.  II.  34 


398  SUGDEN   ON  POWERS. 

introduced  into  this  lease  was  not  equivalent  to  a  general  covenant 
effectually  to  repair  ;  for  under  that  agreement  it  would  be  enough 
if  the  tenant  laid  out  250/.  upon  the  premises  to  the  best  advan- 
tage, whether  that  sum  were  sufficient  for  effectually  repairing 

them  or  not.  This  lease,  therefore,  was  not  answerable 
[  *447  ]  to  tlie  only  object  for  which  the  tenant  *for  life  was 

authorized  to  grant  it.  Mr.  Justice  Parke  concurred 
on  the  first  point,  but  as  to  the  second  question,  said  that  if  the 
decision  had  necessarily  turned  u])on  that,  he  should  have  thought 
it  desirable  to  ascertain  whether  2o0/  was  sufficient  for  effectual 
repairing,  because,  assuming  that  the  jjower  only  required  a  de- 
mise of  the  premises  for  the  purpose  of  a  bonajide  repair,  then  if 
250/.  were  adequate  to  that  purpose,  he  was  not  clear  that  tha 
power  would  not  have  been  sufficiently  well  pursued.  But  it  was 
immaterial  to  decide  that,  the  lease  being  invalid  on  the  other 
ground.  Mr.  Justice  Taunton  also  concurred  on  the  first  point, 
which  he  thought  corroborated  by  the  power  to  lease  for  twenty- 
one  years,  where  the  condition  was  only  that  the  lease  contain  the 
usual  covenants.  In  those  leases,  the  tenant  merely  covenants  to 
repair.  Now  if  the  testator  meant  to  require  nothing  more  than 
this  in  the  leases  for  sixty-one  years,  there  was  no  difierence  as  to 
the  extent  of  obligation  imposed  between  the  power  to  demise  for 
sixty-one  and  that  for  twenty-one  years,  and  it  did  not  appear  why 
there  should  have  been  distinct  powers  for  the  two  terms.  Upon 
the  second  point  he  expressed  some  doubt.  By  the  terms  of  this 
lease  the  minimum  to  be  laid  out  was  250/.,  and  that  was  said  to 
be  for  the  purpose  of  effectually  repairing  the  premises,  and  put- 
ting every  part  of  them  into  complete  and  substantial  repair,  to 
the  satisfaction  of  the  lessor  and  his  assigns.  The  lease  then  went 
on  to  require,  that  when  the  premises,  and  every  part  thereof, 
should  be  "  so  well  and  effectually  repaired  as  aforesaid,"  the  les- 
see should  at  all  times  sufficiently  repair  them  ;  so  that  the  deed 
in  the  first  j)lace  assumed  an  obligation  on  the  tenant  efiectually 
to  repair,  and  then  imposed  on  him  the  charge  of  keeping  in 
repair.  Whether  that  amounted  in  substance  to  a  covenant  ef- 
fectually to  repair  (if  that  alone  were  required,)  it  was  not  neces- 
sary to  decide,  because  there  is  a  complete  objection  to  the  lease- 

upon  the  distinction  between  "  repairing"  and  "  rebuild. 
[  *448  ]  ing  and  repairing."     Mr.  J.  Patterson  concurred  *on 


BOONS   ARE   COVENANTS.  399 

the  first  point ;  on  the  seceud  point  he  said  he  entertained  a 
stronger  opinion  than  Mr.  Justice  Taunton,  for  whatever  con- 
struction might  be  given  to  the  covenant  to  lay  out  250/.,  he 
thought  the  remainder-man  was  entitled  to  the  benefit  of  a  cove- 
nant which  should  leave  no  douht  as  to  the  extent  of  the  lessee's 
obligation.  There  should  have  l)een  an  absolute  covenant  to  put 
the  premises  into  effectual  repair. 

28.  This  construction  prevented  the  tenant  for  life  from  grant- 
ing what  is  properly  understood  by  a  repairing  lease,  the  liability 
under  which  is  altogether  different  from  the  common  liability  of  a 
lessee  to  repair  under  a  usual  covenant  in  a  lease  at  rack-rent. 
There  appears  to  be  a  great  reason  to  suppose,  from  the  expres- 
sions, tiiat  the  testator  intended  to  authorize  such  a  lease  as  was 
granted  :  "  To  new  build,  or  to  rebuild  and  repair.''  But  suj> 
pose  rebuilding  not  to  be  required,  and  yet  extensive  repair  to  be 
necessary,  so  as  to  render  a  lease  at  rack-rent  impossible  ?  An 
extensive  repair,  under  a  repairing  lease,  may  be  more  expensive 
than  a  rebuilding.  If  the  and  had  been  read  or,  the  intention  would 
liave  been  effected  :  1,  for  the  purpose  of  new  building,  or  2,  of 
effectually  rebuilding  or  repairing.  Under  such  a  power  a  lease 
might  have  been  granted  for  the  purpose  of  new  building  altogeth- 
er, or  for  the  purpose  of  rebuilding  and  repairing,  or  for  repairing 
merely,  if  no  rebuilding  was  necessary  ;  but  still  it  would  have 
been  a  question,  whether  a  lease  for  repairing  was  bona  fide,  and 
would  effectually  restore  the  property.  The  nature  of  such  a 
lease  is  well  understood.  If  this  view  is  incapable  of  support, 
yet  it  may  deserve  reconsideration,  whether  such  a  covenant  in 
such  a  lease  would  not,  to  the  extent  of  the  obligation,  impose  a 
liability  on  the  lessee  to  reimild  any  portion  which  appeared  to 
require  it  in  the  course  of  the  repairs.  In  most  cases  of  exten_ 
sive  repairs,  some  of  them  are  of  the  character  of  a  rebuilding. 

Upon  the  second   point,  the  case  reserved  upon  the   trial  of 
tlie  ejectment  was  defective.     It  ought  to  have  stated 
'whether  the  250/.  was  sufficient  for  the  complete  resto-  [  *449  ] 
ration  of  the  premises.     If  that  fact  had  been  found,  it 
would  have  been  difficult  to  invalidate  the  lease  upon  this  ground. 

29.  In  the  case  of  Doc  v.   Sandham,(/)  usual  and  reasonable 

(/)  1  Term  Rep.  705, supra,  p.  133;  and  see  12  East,  309. 


400  SUDGEN   ON  POWERS. 

covenants  were  also  required,  and  in  the  lease  the  lessor  cove- 
nanted that  in  case  of  fire,  &c.,  he,  or  the  person  for  the  time 
being  entitled  to  the  freehold,  should  rebuild,  or  in  default 
thereof,  the  tenant  might  quit  the  premises,  and  be  discharged 
from  payment  of  the  rent.  The  jury  found  the  covenant  to  be 
an  unusual  and  unheard-of  covenant  on  the  part  of  the  lessor, 
and  the  lease  was  accordingly  determined  to  be  void  both  at  law 
and  in  equity. 

30.  But  although  a  power  prohibit  a  lessee  from  being  ex- 
empted from  punishment  for  waste,  and  require  all  such  condi- 
tions, covenants  and  restrictions  as  are  generally  inserted  in  leases 
according  to  the  usage  of  the  country,  yet  if  the  best  rent  is  re- 
served, and  the  covenants  are  the  usual  ones,  a  covenant  by  the 
lessor  to  do  part  of  the  repairs,  which  covenant  was  not  prohib- 
ited by  the  lease,  and  in  case  of  neglect,  a  power  to  the  lessee  to 
do  them,  and  deduct  the  expense  out  of  the  rent,  that  is,  to  set 
off  one  demand  against  the  other,  is  valid  ;  and  does  not  affect 
the  validity  of  the  lease  ;(m)  which  g-ives  no  authority  to  commit 
waste. 

31.  The  construction  is  the  same  upon  any  word  tantamount  to 
the  word  "  covenants,"  as  "  boons,"  or  the  like.  This  was  de- 
cided in  the  case  of  the  Earl  of  Cardigan  v.  Montagu. (w)  The 
words  in  the  power  were  "  reserving  ancient,  usual  and  accus- 
tomed rents,  boons,  heriots  and  services."  And  it  was  deter- 
mined that  the  covenants  formerly  entered  into  were  boons,  and 

that  therefore  leases  granted  under  the  power,  in  which 
[  *450  ]  the  usual  covenants,  viz.,  *to  repair,  to  expend  the  ma- 
nure on  the  premises,  not  to  demise  or  assign,  were 
omitted,  could  not  be  supported,  although  the  Master  had  found 
they  were  valid,  as  the  ancient,  usual,  and  accustomed  rents, 
boons y  and  services,  were  severally  reserved.  His  opinion  there- 
fore was,  that  covenants  were  not  boons  within  the  terms  of  the 
power,  although  he  thought  covenants  for  grinding  at  the  lessor's 
mill  were  in  the  nature  of  boons  and  services.  The  principle 
Lord  ChauccUor  Hardwicke  rested  upon,  was,  that  the  estate 
must  come  to  the  remainder-man  in  as  beneficial  a  manner  as  an- 
cient owners  held  it. 

(;/j)  Doe  V.  Bettison,    12  East,  305;  supra,  p.  398. 
(/i)  App.  No.  13. 


BOONS   ARE   COVENANTS.  401 

32.  In  the  same  case  it  appeared  that  in  some  of  the  old  leases 
there  were  covenants  by  the  lessees  to  pay  all  the  taxes  and  rates 
which  were  not  contained  in  the  new  leases.  The  Master  re- 
ported, that  as  the  ancient  rents  under  the  old  leases  did  by 
means  of  the  covenants  for  the  tenants,  paying  the  taxes  and  rates 
become  clear  rents,  and  for  want  of  such  covenants,  the  several 
rents  reserved  by  the  new  leases  must  be  liable  to  the  land-tax, 
and  other  taxes  and  rates,  to  the  prejudice  of  the  remainder-men  ; 
he  submitted  to  the  Court  how  far  such  rents  so  nominally  re- 
served by  the  new  leases,  for  want  of  such  covenants  could  be 
deemed  in  substance  the  same  ancient  rents,  which  seemed  to  be 
expressly  required  by  the  power.  The  Court  held  all  these  leases 
not  to  be  warranted  by  the  power,  and  therefore  void. 

33.  A  power  required  the  old  rent  and  heriot  to  be  reserved, 
or  more  :  the  old  reservation  was  at  the  opti  on  of  the  landlord, 
the  three  best  beasts  or  a  sum  of  money  on  the  death  of  each  of 
the  cestuis  que  vie,  contingent  on  their  surviving  each  other  :  the 
new  reservation  was  of  the  money  only,  giving  no  option,  but  pay- 
able on  the  death  of  each  life,  subject  to  no  other  contingency. 
This  was  held  to  be  a  bad  reservation,  and  that  it  lay  on  the  les- 
see to  show  that  the  reservation  was  valid  as  being  more  than 
the  old  one,   which  he   failed    to   do  to  the  satisfaction   of  the 

JuiT-(o) 

*34.  The  ommiow  of  a  proper  covenant^avoids,  we  have  [  *451  ] 

seen,  the  whole  lease.  In  Doe  and  Sandham,(;>)  it  was 
argued  that  the  introdticlion  of  an  improper  covenant,  although  it 
imported  to  bind  the  freehold,  was  merely  void,  and  ouglit  not  to 
aflfect  the  validity  of  the  lease  ;  but  Mr.  Justice  Buller  observed, 
that  this  argument,  if  it  proved  any  thing,  proved  this,  that  no 
lease  executed  under  a  power  could  be  bad  except  from  the  omis 
sion  of  some  covenant  required  ;  because  each  covenant  which  is 
contrary  to  that  power  might  be  rejected  ;  but  that  would  be  con- 
trary to  all  the  adjudged  cases  on  the  subject.  The  lease  must  be 
taken,  good  or  bad,  on  the  face  of  it.  Now  where  the  lease  on 
the  face  of  it  imports  to  bind  the  reversion  as  well  as  the  tenant 
for  life,  inasmuch  as  the  tenant  for  life  has  exceeded  his  power, 
the  lease  cannot  bind  the  reversion,  and  is  therefore  void.     But  a 

(0)  Doe  V.  Graiebrook,  4  Adol.  &  Ell.  N.  S.  406. 
(p)  Vide  supra,  p.  449. 

34* 


402  SUGDEN   ON   POWERS. 


(covenant  by  the  tenant  for  life,  not  warranted  by  the  power  but 
binding  himself  only,  may  not  avoid  the  lease. (^) 

35.  If  a  proper  covenant  be  omitted,  the  lease  cannot  be  sup- 
ported, because  the  lessee  has,  of  his  own  accord,  done  that  which 
he  ought  to  have  covenanted  to  do  :  quod  initio  non  valet,  tractu 
temporis  non  convalescet ;  therefore,  if  a  covenant  to  build  be 
wrongfully  omitted,  it  is  no  argument  in  favor  of  the  lease,  that 
the  lessee  has  actually  covered  the  estate  with  buildings,  (r) 

36.  Where  usual  covenants  are  required,  they  must  be  ex- 
pressly inserted  :  a  lease,  with  a  clause  in  ,  the  very  words  of  the 
deed,  would  not  be  good,  nor  could  it  be  aided  by  any  special 
verdict,  finding  what  the  usual  covenants  are.(s) 

37.  It  remains  only  to  observe,  that  the  covenants  entered  into 
by  the  lessee  with  the  donee  of  the  power,  his  heirs  and  assigns, 

will,  under  the  statute  of  Henry  the  8th,  enure  to 
[  452  ]  *the  remainder-man,  who   may  maintain  an  action  on 

them.(^)  This  was  decided  in  Isherwood  v.  Oldknow, 
where  the  lease  was  made  by  a  tenant  for  life  under  a  devise  to 
uses,  and  the  lessee  covenanted  with  the  lessor,  his  heirs  and  as- 
signs. The  remainder-man  was  considered  to  be  an  assignee 
within  the  meaning  of  the  statute.  He  was  not  the  assignee  of 
the  tenant  for  life,  the  hand  which  executed  the  lease,  but  he  was 
an  assignee  of  the  estate  out  of  which  the  lease  proceeded,  ac- 
cording to  the  doctrine  in  Whitlock's  case,  which  shows  that  a 
lease  to  be  made  by  tenant  for  life  l)y  virtue  of  a  power,  entirely 
originates  and  takes  its  essence  out  of  the  estate  from  which  the 
power  is  derived,  and  enures  as  a  limitation  of  the  use  in  pursu- 
ance of  it.  Then  it  followed  that  the  covenants  made  by  the  les- 
see are  to  pass  to  every  person  to  whom  the  person  creating  the 
power  has  given  any  subsequent  interest.  They  pass  to  the  first 
tenant  for  life,  then  to  the  second  tenant  for  life,  although  he  has 
an  interest  derived  not  from  the  first  tenant  for  life,  but  from  the 
person  creating  the  power,  and  that  person  is,  in  the  eye  of  the 
law,  the  lessor. 

(5)  Doe  V.  Bettison,  supra,  p.  398. 

(r)  Jones  v.  Verney,  Willes,  169;  audsee  Cooper  v.  Denne,  4  Bro.  C.  C.  80 

(s)  See  3  Cha.  Rep.  76. 

(0  3  Mau.  &  Selw.  382;  S.  C.  MS.;  Machel.  v.  Dunton,  2  Leo.  33. 


1 


COVENANTS  EUN  WITH  THE  LAND.  403 

38.  Lord  Redesdale(M)  has  observed,  that  in  the  case  of  an 
actual  lease  made  under  a  power  containing  covenants  on  the  part 
of  the  tenant,  the  lease  being  a  lien  on  the  lands  by  virtue  of  the 
power,  the  remainder-man  has  the  benefit  of  all  the  covenants, 
because  they  are  part  of  a  contract  which  creates  a  lien  on  the 
lands ;  yet  they  are  mere  contracts.  They  are  no  part  of  the 
demise  under  the  power,  but  stipulations  entered  into  by  the 
tenant  for  life  with  the  lessee,  for  the  benefit  of  the  remainder- 
man :  as  for  instance,  in  the  case  of  a  covenant  on  the  part  of  the 
tenant  to  repair,  supposing  it  a  covenant  not  required  by  the 
power.  The  meaning  of  this  passage  is,  that  although  the  cove- 
nant is  not  required  by  the  power,  it  will  enure  to  the 
remainder-man.  *In  the  case  before  him,  the  lessee  [  *4o3  ] 
covenanted  to  lay  out  200/.  in  improvements,  which  was 

not  required  by  the  power ;  and  he  held  that  if  the  lessor  had 
died,  the  remainder-man  might  unquestionably  enforce  it  as  a 
covenant  going  with  the  land. 

39.  And*upon  like  grounds  a  power  of  re-entry,  although 
reserved  to  the  lessor  the  tenant  for  life,  his  heirs  and  assigns, 
will  enure  to  the  benefit  of  the  remainder-man  entitled  under  the 
settlement,  (x) 

40.  So  upon  the  same  foundation,  it  is  apprehended  that  cove- 
nants entered  into  by  a  lessor  exercising  a  power  of  leasing,  will, 
if  authorized  by  the  power,  run  with  the  land,  and  bind  the 
remainder-man. 

41.  In  Goodtitle  v.  Funucan,(2/)  where  the  power  was  held  to 
be  duly  executed,  the  lessor  covenanted  for  himself,  his  heirs, 
executors,  administrators  and  assigns,  to  free  the  lessee  from 
tithes  and  from  church  rates.  On  behalf  of  the  lessee,  it  was 
insisted  that  if  the  stipulation  were  not  authorized  by  the  power, 
that  covenant  would  not  bind  those  in  remainder.  It  was  a  cove- 
nant by  the  lessor  for  himself,  his  heirs,  executors,  administrators 
and  assigns.  But  the  counsel  for  the  remainder-man  said,  he 
thought  the  remainder-man,  or  the  heir  or  executor,  might  be  sued 
on  the  covenant,  at  the  option  of  the  lessee  ;  but  Buller,  J.,  said 
that  he  thought  otherwise ;  that  the  lessee '  had  all  he  had  bar- 

(u)  1  Sch.  &  Lef.  64. 

(x)  Hotley  v.  Scot,  LofFt,  316;  Dougl.  572. 

(y)  Dougl.  565. 


404:  SUGDEN   ON   POWERS. 

gained  for  by  liis  remedy  against  the  representatives  of  the  lessor, 
and  had  agreed  by  the  terms  of  the  covenant,  that  it  should  not 
run  with  the  land.  But  Ashurst,  J.,  seemed  to  doubt  as  to  this, 
and  mentioned  Sir  John  Astley's  leases,  where  the  Court  had 
decided  that  the  remainder-man  should  have  the  benefit  of  cove- 
nants for  rent ;  though  by  the  words,  the  lessee  covenanted  only 
with  the  lessor,  his  heirs  and  assig^ns.  Lord  Mansfield,  in  de- 
livering judgment,  said,  that  as  to  the  church-dues,  the  covenant 

seemed  to  be  collateral,  and  not  to  go  with  the  land, 
[  *454  ]  nor  to  bind  the  remainder-man,  *resembling  a  covenant 

for  quiet  enjoyment.  But  if  it  did  go  ivith  the  land,. 
there  was  no  pretence  under  the  circumstances,  of  fraud  on  the 
power.  It  appeared  that  no  tithe  was  payable.  It  seems,  ther^ 
fore,  that  the  general  opinion  was,  that  such  covenants  would  run 
with  the  land,  if  such  was  the  intention,  and  they  were  autliorized 
by  the  power. 

42.  In  Isherwood  v.  01dknow,(;:)  where  it  was  held  that  the 
covenants  of  the  lessee  could  be  enforced  by  the  deviibe  in  remain- 
der under  the  will  by  which  the  power  was  created,  on  the  ground 
that  the  devisor  was  in  the  eye  of  the  law  the  lessor,  it  was  urged 
as  an  argument  against  this  mode  of  considering  the  case,  that  the 
lessee  could  not  maintain  covenant  against  the  heirs  [not  the  de- 
visees] of  the  devisor ;  to  which  Le  Blanc,  J.,  answered,  that  he 
did  not  think  that  it  was  necessary  that  all  the  remedies  should 
be  mutual  as  between  the  assignee  of  the  lessor  and  the  lessee, 
because  mutuality  was  not  so  much  an  object  of  the  statute  of 
Henry,  as  to  give  those  persons  who  at  common  law  were  stran- 
gers, a  power  to  enforce  covenants  which  they  had  not  before. 

43.  The  remainder-man  may  maintain  debt  against  the  lessee. («) 
This  was  relied  upon  in  the  foregoing  case,  in  the  argument  in 
favour  of  the  remainder-man  ;  but  it  was  answered,  that  that  lay 
at  common  law  upon  the  privity  of  the  estate,  and  not  upon  the 
privity  of  contract. 

(2)  See  3  Mau.  &  Selw.  402. 

(a)  2  Lord  Raym.  792;  o  Mau.  &  Selw.  306. 


POWEES   OF   SALE,   ETC. 


405 


*chapti:r  XVIII. 


[  *455  ] 


OF   POWERS   OF   SALE,   AND   EXCHANGE   AND   PARTITION.  (1) 


10. 
13. 


15. 
17. 
18. 
19. 

24. 

26. 

SI. 

33. 
85. 

38. 

43. 
44. 

45. 
46. 

48. 


How  they  should  be  created. 

What  limitations  they  authorize.  ; 

Where  the  appointment  maybe  to  a   52, 

trustee.  ! 

Where   the    power  is   authorized  by   53. 

articles.  1 54. 

Or  by  a  will  directing  a  settlement.         60, 
Where  in  a  settlement  by  a  remainder-   66. 

man,  a  prior  tenant  for  life  may   58. 

join  and  raise  an  immediate  power.    61, 
Where  a  remainder  may  be  sold. 
(  Where  the  heirs  of  a  deceased  trustee   62. 
I      of  a  power  must  concur.  i 

Where  articles  are  in  that  respect  duly   64, 

followed.  65, 

Ware  v.  Polhill,  with  observations. 
Unlimited    powers   of    sale  and   ex-   67 

change  valid.  68, 

May  be  exercised  beyond  the  line  of  69, 

perpetuity. 
Powers  of  sale  upon  conditions.  70 

Doe  V.  Martin,  with  observations. 
Where  the  receipt  of  the  trustees   is   74 

sufificient. 
Observations  on  the  cases.  75 

^  How  far,  in  case  of  an  invalid  ap-   76 
>      pointment,  a  substituted  estate  is   77 
^      charged. 
Estate  unconverted  by  a  trustee  re-    79 

mains  real  estate. 
Power  of  partition  does  not  authorize 

sale  or  exchange.  ' 


Whether  a  partition  is  within  a  power 

of  sale  and  exchange. 
Partition  may  be  by  circuity  under 

power  of  sale. 
Payment  for  owelty  of  exchange  valid. 
)  Whether  by  accession  of  fee  powers 
5      merge. 

■)  Where  power  may  be  executed  whilst 
3      trust  remains  for  any. 
Control  of  equity  over  trustees  of  the 

powers. 
For  what  object  the  powers  should  be 

exercised. 
Not  for  a  rent-charge. 
Tenant  for  life  not  entitled,  on  sale  of 

estate,  to  value  of  the  timber. 
Unless  cut  before  the  sale. 
Where  the  whole  estate  may  be  sold. 
Where  the  money  may  be  applied  to 

pay  debts. 
Tenant  for  life  may  himself  buy  or  ex- 
change. 
,  Cannot  defeat  his   incumbrances   by 

joining  in  sale. 
)  How  far  leases  are  binding  on  a  pur- 
5      chaser. 
Where  a  power  of  sale  is  not  destroyed 

by  a  new  settlement. 
,  Watson  v.  Waltham,  with  observations. 


1.  So  FAR  as  the  cases  on  powers  of  sale  and  exchange  and 
partition  are  sulyect  to  the  general  law,  or  seems  to  illustrate 


(1)  Power  to  executor  by  lease,  or  by  any  other  means,  out  of  the  profits  therefrom 
arising,  to  support  A.,  a  lunatic;  held  an  implied  power  to  sell,  when  by  no  other 
means  could  a  sufi&cient  sum  be  raised.  Schermerhorne  v.  Schermerhorne,  G  Johns. 
Ch.  R.  70. 

Where  there  was  a  power  to  sell  with  consent,  the  moneys  to  be  invested  for  the 
purposes  of  the  will,  it  was  held,  a  mortg.age  was  a  void  execution  of  a  power;  Bloomer 
V.  Waldrou,  8  Hill,  361.  Under  a  settlement,  a  trust  was  created  for  A.  for  life,  with 
power  to  appoint  by  last  will  and  testament,  or  any  other  writing;  a  mortgage  was 


406  SDGDEN   ON    POWERS. 

[  •450  ]  *it,  we  have  already  glanced  at  them,  but  it  is  now 
in  order  to  review  them  as  a  separate  class.     We  have 


held  a  valid  execution  under  the  strictest  rule  of  construction;  Lancister  v.  Dolan,  I 
Rawle,  231.  Power  to  mortgage,  must  be  taken  to  mean  by  such  an  instrument,  &c., 
as  is  usual  in  the  place  where  the  power  is  to  be  executed;  Wilson  v.  Troup,  2  Cow. 
195. 

Power  to  sell,  is  to  be  executed  according  to  usage;  and  a  customary  credit  on  sale 
of  chattels  having  been  given,  the  donee  is  not  responsible;  Ethridge  v.  Binney,  9 
Pick.  276.  Unless  there  be  such  usage,  a  power  to  sell  for  a  certain  sum,  is  not  well 
executed  by  a  sale  on  credit;  Ives  v.  Uarenport,  3  Hill,  377.  •  Where  moneys  arising 
from  the  sale  are  directed  to  be  invested,  the  sale  must  be  for  cash  or  its  equivalent, 
and  part  of  the  consideration  being  au  equitable  claim  of  the  grantee,  it  is  void; 
Waldron  v.  M'Comb,  1  Hill,  111.  If  there  be  a  special  mode  directed,  it  must  be  ex- 
ercised in  that  manner;  hence  a  private  sale  passes  no  title  under  a  power  to  sell  at 
public  sale;  Pendleton  v.  Fay,  2  Paig.  204.  Greenleaf  v.  Queen,  1  Pet.  R.  138. 
Under  a  power  to  sell,  a  release  of  the  interest  of  the  donee  for  a  valuable  considera- 
tion passes  no  title,  for  he  had  no  interest;  the  instrument  intended  by  law  must  be 
such  as  is  proper  for  the  disposition  of  the  subject-matter  of  the  power;  Griswold  v. 
Bigelow,  6  Conn.  260.  Where  there  is  a  naked  authority  to  act  for  another  it  must 
be  done  in  the  name  of  the  principal;  Hefferman  v.  Adams,  7  Watts,  117;  Strohecker 
V.  Farmers,  8  Watts,  18S;  9  Watts,  237. 

A  power  to  sell,  given  by  general  words,  miy  be  limited  as  to  the  time  in  which  it 
may  be  exercised  by  directions  as  to  the  application  of  the  purchase-money;  t'lus, 
where  an  estate  was  given  to  the  donee  to  be  applied  towards  raising  and  schooling 
testator's  children,  and  after  a  general  power  of  sale  the  money  was  directed  to  be 
laid  out  in  other  property,  except  what  migiit  be  necessary  for  keeping,  schooling,  &c., 
it  was  said  the  power  ceased  on  the  children  coming  of  age;  Clark  v.  Campbell,  2 
Raw.  21-5.  And  where  a  power  to  sell  was  given  to  executors  who  were  directed  to 
invest  the  purchase-money,  and  pay  the  interest  to  the  testator's  wife  for  life,  and  at 
her  death  he  gave  the  bonds  and  other  securities  to  his  son,  it  was  held  the  object  of 
the  power  was  the  support  of  his  widow,  and  at  her  death  it  was  extinguished;  Jack- 
son V.  Hansen,  6  Johns.  73.  In  Brown  v.  Arnjstead,  6  Rand.  601,  a  power  to  sell  for 
30  much  as  the  executor  thought  the  land  was  worth,  was  considered  suspended  by 
renunciation  of  the  widow,  thereby  encumbering  the  estate  with  her  dower,  until  her 
death.  Where  a  power  was  given  to  sell  and  pay  two  legacies,  residue  among  chil- 
dren equally;  it  was  held,  the  power  was  gone  by  the  lapse  of  one  legacy,  the  other 
being  void;  Sharpesteen  v.  Tillou,  3  Cow.  651;  Jackson  v.  Jansen,  6  Johns.  73. 

Where  the  donees  are  named  as  mere  executors,  and  not  individually,  the  authority 
under  the  statute  is  vested  in  such  as  may  act;  Shelton  v.  Homer,  5  Mete.  465;  other- 
wise if  they  be  also  named  individually.  lb.  The  executors,  viz.,  A.  B.  and  C,  shall 
be  empowered  to  sell;  when  my  debts  are  paid,  if  anytliing  is  left,  I  give,  &c.,  they 
take  ratione  officii,  the  subsequent  clause  showing  it  to  be  for  payment  of  debts;  and 
one  executor,  tiie  others  surviving,  may  sell  by  virtue  of  the  statute  Hen.  VIII. 
Zeback  v.  Smith,  3  Binn.  69;  Hunt  v.  Ferris,  15  Johns.  316.  Before  the  act  of 
1800,  administrator  did  not  succeed  to  the  power  to  sell  for  payment  of  debts;  Moody 
V.  Vandyke,  4  Binn.  31.  Devise  after  payment  of  debts  gives  no  power  to  sell,  but 
creates  a  charge  in  equity;  Drum  v.  Keeling,  2  Dev.  2S3. 


POWERS   OP  SALE,   ETC.  407 

already  fully  considered  where  a  power  of  sale  is  created,  and  to 
whom  it  is  given  under  particular  words,  and  where  it  may  be 
implied,  and  what  acts  it  authorises,  and  at  what  time  it  may  be 
executed.  The  present  examination  will  be  confined  principally 
to  cases  arising  upon  the  common  powers  of  sale  and  exchange,  &c., 
in  settlements. 

2.  As  to  the  mode  of  creating  a  power  of  sale  and  exchange,  we 
have  already  considered  by  what  instruments  they  maybe  created. 
In  well-drawn  deeds,  in  which  powers  of  sale  and  exchange  are  in- 
serted, it  is  usual  to  give  the  trustees  of  the  powers  an  express 
authority  to  revoke  the  old  uses,  and  to  appoint  such  new  uses  as 
will  effectuate  the  intention  of  the  parties,  and  the  declaration  for 
this  purpose  cannot  be  too  general.  It  is  not  however  necessary  to 
give  express  powers  of  revocation  and  new  appointment ;  for, 
whatever  be  the  form  in  which  a  power  of  sale  is  given,  it  will 
operate  as  a  power  of  revocation  and  new  appointment,  and  may 
be  executed  accordingly.  Thus,  it  was  clearly  holden  by  the  Lord 
Keeper,  in  the  Bishop  of  Oxford  v.  Leighton,  that  a  direction,  that 
a  releasee  to  uses  in  a  settlement  should  convey  to  such  uses  as 
A.  should  appoint,  amounted  to  a  power  of  revoking  and  limiting 
new  uses,  althjough  the  proviso  was  unskilfully  penned. (a) 

3.  All  old  poAvers  of  sale  and  exchange  merely  express  that  the 
trustees  may  sell  or  exchange  the  land,  and  do  not  give  express 
powers  of  revocation  and  new  appointment.  Sometimes  the  trus- 
tees are  made  merely  to  "  appoint  and  make  sale,"  or  to  "  ap- 
point and  sell"  the  land  to  the  uses  :  the  words  of  the  power  be- 
ing followed  with  the  addition  of  the  word  appoint,  and  sometimes 
they  are  made  to  expressly  revoke  the  uses  of  the  settlement,  and 
then  to  appoint  to  the  new  uses.  Either  mode  will  effectuate 
the  intention.     The  latter  is  sometimes  objected  to  by  unskil- 

(rt)  2  Vern.  367;  supra,  ch.  8, 

tinder  a  statute  authorizing  a  sale  and  conveyance  by  executors  undertaking  the 
office,  if  no  others  were  appointed,  or  those  appointed  should  die,  ityras  held  a  discre- 
tionary power  could  not  be  exercised;  and  the  statute  only  applies  where  a  sale  was 
unconditionally  directed;  Woolidge  v.  Watkins,  3  Bibb,  '^51.  The  addition  of  the 
words  "  for  as  much  as  in  their  judgment  is  equal  to  its  value,  is  a  restriction  of  the 
power,  and  not  any  peculiar  personal  confidence,  hence  such  a  power  survives;  Brown 
V.  Armsteml,  6  Rand.  594;  Craig  v.  Craig,  7  Dana,  9.  See  note,  ante,  vol.  i,  ♦134, 
note  2,  and  *412,  note  (1). 


408  SUGDEN  ON   POWERS. 

[  *4r)7  ]   fill  *persons  as  not  authorized  by  the  power,  but  to 
this  objection  the  Bishop  of  Oxford's  case  is  a  decisive 
answer. 

4.  In  ill-penned  powers  of  sale  it  sometimes  happens  that  the 
party  is  authorized  to  appoint  the  estate  to  the  purchaser,  his 
heirs  and  assigns,  which  should  never  be  done  ;  for  it  has  in  this 
case  also  been  contended  in  practice,  that  the  estate  can  only  be 
appointed  to  the  purchaser  in  fee,  and  nbt  to  uses  to  bar  dower,  or 
to  any  other  uses  which  the  case  may  require.  To  obviate  this 
difficulty,  where  it  was  intended  to  bar  the  purchaser's  wife  of 
dower,  it  has  been  recited  (contrary  to  the  fact)  that  the  contract 
was  entered  into  by  A.  as  agent  for  B,  the  real  purchaser,  and 
the  estate  has  been  conveyed  to  A.  in  fee,  in  trust  for  the  pur- 
chaser. But  upon  the  authority  of  Phelp  and  Hay  it  may  be 
thought  that  the  doubt  in  this  case  is  not  well  founded.  When 
it  is  once  admitted  that  the  intention  of  the  power  is  to  be  regard- 
ed, and  not  the  precise  terms  of  it,(6)  there  seems  to  be  no  ground 
for  this  practice.  The  intention  expressly  is,  that  the  inheritance 
of  the  estate  shall  be  sold,  but  the  mode  of  the  conveyance  rests  in 
the  breast  of  the  purchaser.  The  direction  simply  amounts  to  a 
declaration  that  the  fee  shall  belong  to  the  purchaser.  It  merely 
expresses  what  would  be  implied  in  the  power,  in  the  absence  of 
an  express  provision,  it  being  clear  that  a  power  to  trustees  to 
sell  an  estate  will  authorize  them  to  appoint  the  estate  to  the  pur- 
chaser in  fee,  although  the  power  be  silent  on  that  head.  Now. 
if  the  direction  were  wholly  omitted  it  would  scarcely  be  doubted 
that  the  estate  might  be  conveyed  to  any  uses  the  purchaser 
should  desire.  Therefore,  according  to  the  rule  of  law,  that  ex- 
pressio  eorom  quce  tacite  insiint  nihil  operatur,  it  may  be  con- 
tended, independently  of  decision,  that  although  the  trustees  of  the 

power  are  only  authorized  by  the  words  of  it  to  appoint 
[  *458  ]  the  estate  to  the  purchaser  in  fee,  *yet  they  may  ap- 
point it  to  uses  to  bar  dower,  or  in  any  other  manner 
that  the  purchaser  may  direct.  (I) 

5.  In  a  rtcent  case(c)  the  power  of  sale  and  exchange  in  a 
settlement  was  given  to  trustees  with  the  consent  of  the  husband 

(6)  See  Morris  v.  Preston,  infra;  and  see  Mackintosh  v.  Barber,  Supra,  vol.  1.  p.  142. 

(c)  Howard  v.  Ducane,  Turn.  &  Russ.  81. 

(I)  This  is  of  little  importance  since  tlie  new  law  of  dower. 


POWERS  OP  SALE,   ETC.,   AUTHORIZED   BY   ARTICLES.  409 

and  wife,  and  it  was  declared  that  when  sold,  the  estate  should 
be  freed  from  the  uses,  and  .  that  the  settlement  should  enure  to 
the  purchaser  in  fee.  The  trustees,  with  the  consent  of  the  hus 
band  and  wife,  conveyed  part  of  the  property  to  one  as  a  pur- 
chaser, his  heirs  and  assigns,  to  the  use  of  the  husband  and  the 
nominal  purchaser,  his  heirs  and  assigns,  to  the  use  of  the  husband 
and  the  nominal  purchaser,  their  heirs  and  assigns ;  but  as  to  the 
estate  of  the  nominal  purchaser,  in  trust  for  the  husband  in  fee :  and 
the  conveyance  recited,  that  the  purchase  was  on  behalf  of  the  hus- 
band. Two  objections  were  made  :  one,  that  the  real  purchaser's 
consent  was  necessary  to  the  sale,  and  therefore  he  could  not  buy  ; 
the  other,  that  the  appointment  was  to  an  agent  merely,  and  the 
power,  therefore,  was  not  well  executed.  Lord  Eklon  observed,  as 
to  this  point,  that  there  was  nothing  in  the  nature  of  such  a  power 
as  this  to  prevent  one  man  from  becoming  a  purchaser  in  trust  for 
another  ;  and  considering  the  nominal  purchaser  as  the  purchaser, 
it  did  not  appear  to  liim  to  be  any  objection  to  the  execution  of 
the  power,  that  the  parties  had  thought  proper  to  put  upon  the 
instrument  a  declaration  of  trust  for  the  person  for  whose  benefit 
he  was  a  purchaser.  It  appeared  to  him  to  make  no  difference 
whether  the  purchaser  chose  to  execute  a  declaration  of  trust  by 
the  same  instrument,  or  l»y  anotlicr  instrument. 

6.  In  truth,  the*law  can  only  look  to  the  person  who  fills  os- 
tensibly the  character  of  a  purchaser.  No  one  could  doubt  that 
an  agent  with  an  undisclosed  principal  could  buy  and 

obtain  the  fee  under  such  a  power  ;  and  why,  *with  [  *459  ] 
reference  to  the  form  of  the  conveyance,  should  he  not 
dicslose  the  fact  ?  The  real  purchaser  may  desire  to  have  the 
estate  vested  in  a  trustee,  and  may  not  choose  to  take  a  conveyance 
to  himself  in  fee.  The  case  of  Howard  v.  Ducane  was,  of  course, 
stronger  against  the  power  to  limit  the  fee  to  a  person  not  being 
the  real  purchaser,  than  a  mere  power  to  appoint  to  the  purchaser. 

7.  If  uses  in  strict  settlement  arc  directed  to  be  raised  by  a 
will,  and  it  is  intended  that  the  usual  power  of  sale  and  exchange 
should  be  inserted  in  the  settlement,  an  express  declaration  of  the 
intention  should  be  made  ;  such  a  power  cannot  be  implied. (rf) 
The  same  observation  applies  to  articles  for  a  settlement.     But 

(rf)  Wheate  v.  Hall,  17  Vcs.  jun.  80. 

Vol.  II.  35 


410  SUGDEN   ON   POWERS. 

in  a  casG(^)  where  the  articles  contained  a  clause  that  the  hus- 
band and  wife,  and  the  survivor,  should  have  a  power  to  appoint 
new  trustees,  "  and  also  all  such  other  powers  and  provisoes  for 
effectuating  the  intention  of  the  parties  as  are  usually  contained  J 
in  settlements  of  the  like  nature  as  shall  be  approved  of  by  the 
trustees  ;"  Lord  Eldoii  determined  tlie  powers  of  selling,  exchang- 
ing, and  investing  in  new  purchases,  are  usual  in  settlements,  and  1 
therefore  powers  of  sale  and  exchange  came  within  the  meaning 
of  this  clause,  and  ought  to  be  inserted  in  the  settlement.  In  the 
case  of  Williams  v.  Ca]'tcr,(/)where  money  was  settled,  with  a 
power  to  the  trustees  to  change  the  stocks,  funds,  and  securities,  in 
which  it  might  be  invested,  for  others  of  the  same  or  the  like 
nature,  and  the  intended  husband  covenanted  to  settle  any  real 
estate  to  which  he  and  his  wife  might  become  entitled  in  her  right, 
upon  the  same  trusts,  and  subject  to  the  powers,  &c.  declared  of 
the  funds,  or  as  near  thereto  as  the  nature  of  real  estate 
would  admit  of,  it  was  held  that  the  settlement  ought  to  contain 
powers  of  sale  and  exchange,  and  a  distinction  was  taken  between 
a  covenant  to  settle  a  particular  estate,  and  a  covenant  to  settle 

all  estates,  generally. 
[  *460  ]  *8.  And  in  Hill  v.  IIill,(g-)  marriage  articles  provid- 
ed for  a  strict  settlement  with  powers  to  the  intended 
husband  to  charge  by  way  of  mortgage  for  the  rdief  of  his  estates, 
and  also  to  charge  portions  for  younger  children,  "  and  likewise 
all  other  powers,  provisions,  clauses,  covenants  and  agreement 
usually  inserted  in  settlements  of  the  like  nature,  and  which  shall 
be  proper  for  effecting  any  of  the  purposes  aforesaid  :  it  was  held 
that  a  power  of  sale  and  exchange  might  be  inserted  in  the  settle- 
ment. The  Yice-Chancellor  observed  that  there  was  a  palpable 
distinction  between  inserting  in  a  settlement  powers  for  the  better 
management  and  better  enjoyment  of  the  settled  estates,  which 
are  beneficial  to  all  parties,  and  powers  which  confer  personal 
privileges  on  particular  parties,  such  as  powers  to  jointure,  to  raise 
money  for  any  particular  purpose,  &c.  But  powers  of  leasing,  of 
sale  and  exchange,  and  (where  there  is  any  joint  property,  or 
there  are  any  mines,  or  any  land  fit  for  building  purposes,)  powers 
of  partition,  of  leasing  mines,  and  of  granting  building  leases,  are 

(e)  Peake  v.  Penlington,  2  Ves  &  Bea.  311;  vide  supra,  vol.  1.  513. 
(/)  Appendix,  No.  22.  {g)  6  Sim.  136. 


POWERS  OF  SALE,  ETC.,  AUTHORIZED  BY  WILL. 


411 


powers  for  the  general  management  and  better  enjoyment  of  the 
estates,  and  such  powers  are  beneficial  to  all  parties.  He  thought 
it  was  not  necessary  that  and  should  be  read  or.  The  intention 
was  that  the  clause  should  be  read  as  if  it  stood  thus :  "  and  like- 
wise all  other  powers,  provisions,  clauses,  covenants  and  agree- 
ments, which  shall  be  proper  for  effecting  any  of  the  purposes 
aforesaid,  and  which  are  usually  inserted  in  settlements  of  the  like 
nature  ;"  which  would  include  everything. 

9.  In  a  case  where  articles  for  a  settlement  of  estates  in  Ireland 
stipulated  that  the  settlement  should  contain  all  the  covenants, 
provisoes,  and  conditions  usually  contained  in  marriage  settle- 
ments made  in  England,  it  was  not  doubted  that  a  power  of  sale 
and  exchange  was  authorized,  and  it  was  held  that  the 

power  might  authorize  exchanges  for  *estates  in  Eng-  [  *4G1  ] 
land  as  well  as  Ireland,  or  the  investment  of  money 
produced  by  sale  in  estates  there. (//) 

10.  In  Brewster  v.  Angell,(i)  estates  were  devised  to  trustees, 
in  trust  for  certain  children  for  their  lives,  with  remainders  in 
strict  settlements.  And  the  testator,  after  directing  his  trustees 
to  make  a  settlement  of  his  estate  accordingly,  and  that  the  share 
of  each  of  his  two  daughters  A.  W.  and  M.  W.  Smith  should  be 
for  her  separate  use,  with  a  power  of  appointment  amongst  her 
issue,  directed  that  in  such  settlement  there  should  be  inserted 
all  proper  powers  and  authorities  for  making  leases,  and  other- 
wise, according  to  circumstances,  to  and  for  the  tenants  for  life, 
to  be  exercised  by  them  at  such  times  as  they  should  be  ]\v  law 
qualified  so  to  do,  and  the  same  powers  and  authorities  to  be 
exercised  on  their  behalf  by  the  said  Brewster,  and  the  others 
their  heirs  and  successors,  whenever  such  tenants  for  life  respec- 
tively should  be  disabled  or  disqualified  by  law  to  act  freely  and 
of  their  own  uncontrolled  authority  in  the  said  premises ;  and  that 
provisions  should  also  Ijc  made  in  such  settlement  for  the  appoint- 
ment of  new  executors,  trustees  and  guardians,  in  the  like  manner 
as  the  said  testator  had  directed  respecting  his  personal  estate, 
alluding  to  another  will  disposing  of  his  personalty. 

A  settlement  was  made  under  the  direction  of  the  Court,  in 
which  was  contained  a  power  to  the  trustees  under  the  will,  and 

(/i)  Duke  of  Bedford  v.  Marques  of  Abercorn,  1  l\.}j\.  &  Cro.  312. 
(i)  1  Jac.  &  WalL  625. 


412  SUGDEN   ON   POWEES. 

the  survivors,  &c.  with  the  consent  of  the  tenants  for  life,  and 
after  their  decease,  of  the  person  in  remainder,  if  twenty-one,  and 
if  not,  of  the  proper  authority  of  the  trustees,  to  sell,  exchange 
and  make  partition  of  the  estates.  The  estate  was  sold  under 
the  power,  and  the  purchaser  objected  to  the  title.  The  Lord 
Chancellor  said  the  question  was,  whether  a  power  given  to  trus- 
tees to  sell,  with  the  approbation  of  the  tenant  for  life,  which  he 

could  not  give  if  he  were  disqualified,  is  such  a  power 
[  *4G2  ]  as  is  authorized*  to  be  put  into  this  settlement.     Now, 

what  are  the  words  of  the  will  ?  they  are,  "  all  proper 
powers  for  making  leases  and  otherwise,  according  to  circum- 
stauces,  <fec. ;"  whatever  then  is  the  meaning  of  the  words  "  and 
otherwise,  according  to  circumstances,"  they  are  to  be  powers 
and  authorities  "  to  the  tenants  for  life,  to  be  exercised,  &c." 
Supposing  that  a  power  of  sale  and  exchange  could  be  given  under 
these  words,  it  is,  according  to  the  common  sense  of  them,  to  be 
given  to  the  tenants  for  life,  and  in  case .  they  are  disqualified,  to 
the  trustees  ;  but  this  is  a  power  to  act  with  the  approbation  of 
the  tenant  for  life,  qualified  or  not.  The  inclination  of  his  opinion 
was,  that  this  was  not  a  proper  power ;  but  he  was  quite  clear  he 
could  not  compel  a  purchaser  to  take  a  title  depending  on  it. 
The  question  to  be  decided  was  not  whether  a  power  of  selling 
and  exchanging  might  not  have  been  given  to  tlio  tenants  for  life, 
if  qualified  to  act,  and  if  not  qualified,  to  the  trustees ;  but 
whether  such  a  power  could  be  given  to  the  trustees  acting  with 
their  approbation,  sliould  they  be  or  be  not  qualified. 

11.  Upon  a  bill  filed  to  correct  the  settlement,  it  was  held  that 
the  will  did  not  authorize  the  insertion  of  a  power  of  sale.(^') 

12.  We  have  already  seen  at  what  time  a  power  may  be  exe- 
cuted. (/)  This  question  seldom  arises  upon  the  common  power 
of  sale  in  a  settlement. 

13.  In  a  recent  case,  a  mother  was  tenant  for  life,  with  remain- 
der to  her  daughter  in  tail.  In  pursuance  of  a  decree,  on  the 
daughter's  marriage  the  estates  were  to  be  settled  to  the  husband 
for  life,  with  the  usual  remainders  over,  with  powers  of  sale  and 
exchange.  The  mother  joined  in  the  recovery  and  settlement, 
and  the  estates  were  limited  to  her  for  life,  remainder  to  the  hus- 

(/f)  Home  V.  Bartcn,  Jac.  437.  (/)  Vide  supra,  vol.  1,  p.  330. 


?OWER   OP   SALE   ETC.,   AUTHORIZED   BY   WILL.  413 

band  for  life,  with  remainders  over  according  to  the  decree ;  and 
a  power  of  sale  was  inserted  at  any  time  during  the  lives  of 
the  husband  and  wife,  and  the  survivor,  with  their,  his,  or  her 
consent. 

*The  estates  were  sold  in  the  life-time  of  the  mother  ;  [  *463  ] 
and  it  was  objected,  that  the  power  could  not  be  exe- 
cuted until  after  her  death  ;  but  the  Master  of  the  Rolls  decreed 
the  purchaser  to  take  the  title. (m) 

14.  In  this  case  the  interests  of  the  remainder-man  were  not 
accelerated,  for  the  mother  took  a  life  interest  in  the  purchase- 
money  and  in  the  estate  to  be  bought  v/ith  it. 

15.  But  if  a  reversion  or  remainder  is  settled  to  the  common 
uses,  with  a  power  of  sale  in  its  terms  general,  the  reversion  or 
remainder  may  be  sold  so  as  to  give  to  the  persons  entitled  under 
the  settlement  an  interest  in  possession.  And  it  will  not  be  held 
that  a  sale  cannot  be  made  until  the  remainder  fall  into  posses- 
sion, merely  because  the  power  authorizes  an  exchange  for  another 
estate  in  possession.  A'con tract  by  the  tenant  for  life,  not  claim- 
ing under  the  settlement,  and  the  trustees  of  the  power  of  the  fee 
in  possession,  will  be  sustained  upon  the  money  being  duly  appor- 
tioned between  the  life  estate  and  the  remainder  in  fee. 

16.  This  was  decided  by  the  case  of  Clark  v.  Seymour, (w) 
whore  a  remainder  in  fee  expectant  upon  a  life  estate  was  settled 
upon  a  marriage  to  the  usual  uses  in  strict  settlement ;  with  a 
power  to  the  trustees,  at  any  time  or  times  thereafter,  with  the 
consent  of  the  husband  and  wife,  &c.,  to  sell  or  exchange  for  other 
estates  in  fee  simple  in  possession,  and  to  invest  the  purchase- 
money  in  the  purchase  of  other  estates  in  fee  simple  in  possession, 
to  be  settled  to  the  uses  of  the  settlement,  with  the  common  direc- 
tion as  to  the  application  of  the  money  until  so  invested.  The 
tenant  for  life,  and  the  trustees  of  the  power,  with  the  jiroper 
consents,  sold  the  fee,  and  the  contract  was  enforced  against  the 
purchaser.  The  court  was  of  opinion  that  the  trustees  could  sell 
the  reversion  at  any  time,  for  terms  were  used  in  the  settlement 
whicli  are  ap|)licable  to  an  immediate  sale,  and  there 

could  be  no  doubt  about  the  meaning  of  the  *expres-  [  *464  ] 

(jn)  Fry  v.  Fish,  Rolls,  5th  August,  1811,  MS.     Bee  Tasker  v.  Small,  6  Sim.  C25. 
3  Myl.  &  Cra.  63. 
(n)  7  Sim.  67. 

35* 


414  SUGDEN  ON   POWERS. 

sions,  and  it  was  referred  to  the  Master  to  apportion  tlie  pur- 
chase-money, having  regard  to  the  interest  of  the  parties. 

17.  In  some  instances,  powers  of  sale  are  so  framed  as  to  pre- 
vent the  surviving  trustees  of  it  from  acting  without  the  concur- 
rence of  the  heir  of  tlie  deceased  trustee.  We  have  already  seen 
how  this  doctrine  operates  upon  powers  of  consenting,  given  to 
trustees  and  their  heirs. (o) 

18.  In  a  late  case,(j9)  where  a  power  of  sale  was  reserved  by  a 
.settlement  to  three  trustees  and  t/ieir  heirs,  and  there  was  a 
power  to  appoint  new  trustees  upon  the  death,  &c.  of  any  of  the 
trustees,  it  was  held  that  two  surviving  trustees  could  not  execute 
ihe  power,  although  the  money  was  directed  to  be  paid,  to  the 
(trustees,  or  the  survivors  or  survivor  of  them,  or  the  executors, 
•■administrators  or  assigns  of  such  survivor.  But  in  a  later  case((/') 
.a  devise  to  trustees,  their  respective  heirs  and  assigns,  upon  trust 
that  they,  their  respective  heirs  and  assigns,  should  sell,  <fec.,  was 
Iheld  to  be  a  common  devise  with  the  usual  trust,  the  word  "  re- 
■spective"  being  rejected. 

19.  In  Hall  v.  Dewes,(r)  the  question  was  whether  a  power  of 
sale  was  authorized  by  the  articles,  by  which  the  husband  cove- 
nanted with  three  trustees  to  settle  the  estate  to  himself  for  life, 
i-emainder  to  the  three  trustees  in  fee,  upon  trusts,  and  particular- 
ly to  sell  as  the  husband  should  direct,  or  if  no  direction,  then 
after  his  death.  And  it  was  provided,  that  there  should  be  a 
power  to  the  husband,  with  the  consent  of  the  three  trustees, 
their  heirs  or  assigns,  to  sell  or  exchange,  for  such  equivalent  as 
by  the  trustees  or  the  survivor  should  be  thought  reasonable  :  and 
the  trustees  or  the  survivor,  his  executors  or  administrators, 
were  to  give  receipts.     There  was  also  to  be  the  usual  power  of 

appointing  new  trustees  upon  the  death,  &c.  of  any  of 
[  *465  ]  the  three  *trustees,  &c.  By  the  settlement  a  power  of 
sale  was  reserved  to  the  husband,  with  the  consent  of 
the  three  trustees,  or  the  survivors  or  survivor  of  them,  or  the 
heirs  or  assigns  of  such  survivor,  or  of  the  trustees  or  trustee  for 
the  time  being.  The  question  was  whether  a  sale,  with  the  con- 
Co)  Supra,  ch.  5,  s.  3. 

(p)  Townsend  v.  Wilson,  1  Barn.  &  Aid.  608. 
{q)  Jones  v.  Price,  11  Sim.  557. 
(r)  Jac.  189.    See  ch.  19,  post;  and  see  11  Sim.  568. 


IN  WHAT  TRUSTEES,    POWER   OF   SALE   VESTED.  415 

sent  of  a  new  trustee  and  of  a  surviving  trustee,  was  good,  with- 
out the  concurrence  of  the  heir  of  the  deceased  trustee.  Lord 
Eldon  refused  to  make  the  purchaser  accept  the  title.  With  re- 
spect to  Townsend  v.  Wilson,  he  asked,  whether  the  Court  of 
King's  Bench  considered  that  the  two  surviving  trustees,  and  the 
heir  of  the  deceased  trustee,  were  to  act  together  ;  for  it  was  one 
thing  to  say  that  the  survivor  should  not  act  until  another  was 
appointed,  and  a  different  thing  to  say  that  the  heir  of  the  deceas- 
ed trustee  could  not  act  in  the  meantime.  He  did  not  agree  with 
the  decision  in  that  case  ;  he  l)elicved  that  he  should  not  have 
been  induced  so  to  decide  it. 

20.  Lord  Eldon's  question  could  not  be  answered,  because  the 
Court  of  King's  Bench  gave  no  reasons  for  their  judgment ;  but 
they  certified  that  the  two  surviving  trdstces  could  not  exercise 
the  power,  not  that  they  and  the  hoir  of  the  deceased  trustee  could. 
There  is  certainly  some  difficulty  in  construing  such  a  power,  as 
itttroducing  the  heir  of  a  deceased  trustee  in  his  place,  but  such 
are  the  ivords^  for  the  words  and  their  heirs  can  have  no  other 
meaning  ;  and  as  the  power  of  appointing  new  trustees  is  rarely 
made  imperative,  the  directing  the  heir  to  stand  in  the  place  of 
his  ancestor,  at  once  keeps  up  the  rmmber  of  the  trustees,  and  if 
the  heirs  are  not  fit  pereons  to  act,  drives  the  parties  to  exercise 
the  power  of  appointing  new  trustees. 

21.  There  was  more  difficulty  in  deciding  against  the  title  in 
Hall  V.  Dewes  than  there  was  in  Townsend  v.  Wilson,  for  in  the 
former  case  the  remainder  in  fee  was  vested  in  the  trustees  to  sell, 
and  it  is  clear  that  the  survivors  or  survivor  of  the  trustees  could 
have  sold  without  the  concurrence  of  the  heirs  of  the 
deceased  trustees.  The  power  of  *salc  and  exchange  [  *466  ] 
directed  to  be  inserted  was  with  the  consent  of  the 

three,  their  heirs  or  assigns ;  seeming,  therefore,  to  require  the 
consent  of  the  very  persons  in  whom  the  previous  trust  for  sale 
was  reposed,  and  the  other  expressions  in  the  articles  strongly 
confirmed  this  view.  But  if  the  articles  imperatively  required 
new  trustees  to  be  chosen  upon  every  vacancy, (.9)  then  Lord  El- 
don's opinion  upon  that  clause  which  in  effect  disabled  surviving 
trustees  from  acting  in  the  power  of  sale  until  the  number  was 
complete. 

(s)  See  Jac.  190. 


410  SUGDEN   ON   POWERS. 

22.  Ill  a  later  casc,(/)  an  estate  was  convoyed  to  secure  a  sum 
of  money  to  a  trustee  for  the  lender  in  fee,  upon  trust,  when  re- 
quired by  the  lender,  tliat  he  and  his  heirs  should  sell  the  estate 
in  such  lots  as  he  or  they  should  think  proper  ;  and  the  receipts  of 
the  trustee,  his  heirs,  executors,  administrators  and  assigns,  were 
to  be  discharges.  The  trustee  died  intestate,  and  his  heir  con- 
veyed the  estate  to  another  person  upon  trust  to  sell.  Sir  Laun- 
celot  Shad  well,  V.  C,  held  that  the  assignee  could  not  exercise 
the  trust.  The  necessity,  he  said,  of  discussing  this  point  upon 
principle  was  superseded  by  the  decision  in  Townsend  v.  Wilson, 
and  as  the  judgment  in  that  case  remained  unreversed,  it  decided 
the  question  under  consideration.  It  had  been  correctly  stated, 
that  in  Hall  v.  Dewes,  Lord  Eldon  did  not  approve  of  the  decision, 
but  he  felt  himself  bound  by  it ;  so  that  he  would  not  compel  the 
purchaser  in  that  case  to  take  the  title.  Now  in  Townsend  v.  Wil- 
son the  power  of  sale  was  given  to  three  trustees  and  their  heirs, 
and  the  money  to  arise  by  sale  was  directed  to  be  paid  to  the 
trustees  and  the  survivors  or  survivor  of  them  ;  so  that  in  that 
case  there  was  the  very  distinction  that  occurred  in  this  ;  one  of 
the  trustees  died,  and  the  power  was  exercised  by  the  two  survi- 
vors, and  the  question  was  wlvcther  it  was  a  good  execution  of  the 

power.     The  Court  of  King's  Bench  determined  tliat  it 
[  *467  ]  *was  not.     The  V.  C,  therefore  felt  himself  bound  by 
that  authority. 

23.  The  application  of  the  case  of  Townsend  v.  Wilson  to  that 
of  Bradford  v.  Belfield  is  not  perhaps  very  obvious.  The  V.  C. 
must  have  considered  it  as  deciding  that  the  heir  of  the  trustee 
alone  could  sell.(2/)  In  the  former  case  the  point  decided  was, 
that  the  two  surviving  original  trustees  could  not  by  themselves 
execute  the  power.  There  was  no  attempt  to  introduce  a  new 
trustee.  The  objection  on  the  contrary  was,  that  not  having  the 
concurrence  of  the  heir  of  the  deceased  trustee,  they  had  not  ap- 
pointed a  new  trustee,  which  they  had  power  to  do  :  whilst  in  the 
latter  case  the  objection  was,  that  the  heir  had,  without  any  suffi- 
cient authority,  transferred  his  trust  or  power  to  a  stranger.  In 
this  case  it  was  of  course  never  doubted  that  the  heir  of  the  origi- 

(/)  Bradford  v.  Belfield,  2  Sim.  265. 

(u)  See  now  Cooke  v.  Crawford,  13  Sim.  91. 


UNLIMITED   POWERS   OF   SALE   OF  LEASEHOLD.  417 

nal  trustee  was  the  trustee  in  his  place ;  whilst  in  Townsend  v. 
Wilson,  the  question  was  whether  the  heir  loas  a  trustee  until  dis- 
placed, in  the  room  of  his  ancestor.  Bradford  and  Belfield  seems 
to  depend  upon  the  doctrine  ruled  in  Cole  v.  Wade,(.r)  rather 
than  upon  that  which  arose  in  Townsend  v.  Wilson.  The  cases 
should  not  be  confounded. 

24.  In  Ware  v.  rolhill(//)  freeholds  and  copyholds  were  de- 
vised to  the  testator's  son  for  life,  remainder  to  trustees  to  pre- 
serve contingent  remainders,  remainder  to  his  first  and  other  sons 
in  tail,  remainders  over  ;  and  leaseholds  were  bequeathed  to  trus- 
tees, to  renew  and  to  pay  the  rents  to  the  persons  who  under  the 
above  limitations  should  for  tlie  time  be  entitled  to  the  rents  of 
the  freeholds  and  copyholds  ;  and  the  trustees  were  empowered 
at  any  time  thereafter,  with  the  consent  of  the  person  or  persons 
who  should  as  aforesaid  be  entitled  to  the  rents  of  the  fl-eeholds 
and  copyliolds,  or  in  case  such  person  should  be  a  minor,  at  the 
discretion  of  the  trustees,  to  sell  the  leaseholds,  and 
lay  out  the  purchase-money  *in  the  purchase  of  free-  [  *468  ] 
holds  or  copyholds,  to  be  settled  to  the  uses  of  the  free- 
holds and  copyholds  devised  ;  and  until  such  purchase,  the  money 
to  be  invested,  and  the  interest  paid  to  the  persons  for  the  time 
being  entitled  to  the  rents  of  the  freeholds  and  copyholds  devised. 
The  power  of  sale  was  not  exercised  ;  a  grandson  died  under 
twenty-one  ;  and  upon  a  bill  Qled,  it  was  insisted,  that  under  the 
provisions  of  the  will  the  intention  of  the  testator  was,  that 
all  his  property  not  real  estate  should,  after  payment  of  his 
debts,  etc.,  be  converted  into  real  estate,  and  limited  in  strict 
settlement ;  and  tlie  trustees  ought  to  have  sold  all  the  leasehold 
estate  accordingly.  That  the  intention  was  to  provide  for  the 
issue  male  ;  and  that  the  leasehold  estate,  while  unsold,  should 
go  with  the  freehold,  as  far  as  the  rules  of  law  and  equity  would 
permit,  and  not  vest  in  a  tenant  in  tail,  so  as  to  be  trausnussible, 
unless  such  tenant  in  tail  attained  the  age  of  twenty-one.  The 
Lord  Chancellor's  opinion  was  against  this  construction.  Upon 
a  subsequent  day  he  observed,  that  upon  further  consideration  as 
to  tlie  leascliold  estate,  he  thouglit  that  power  of  sale  was  void, 
for  it  might  travel  through  minorities  for  two  centuries  ;  and  if 

(r)  Vide  supra,  \ol.  1,  p.  150. 
(y)  11  Ves.  jun.  257. 


418 


SUDGEN  ON  POWERS. 


it  is  bad  to  the  extent  in  which  it  was  given,  you  cannot  model  if 
to  make  it  good.  He  thought  the  roundest  ground  was  that  th^ 
power  was  bad. 

25.  The  point  decided  by  the  above  case  is,  that  where  a  lease 
hold  estate  is  settled  as  a  real  estate,  but  so  as  to  vest  absolutel] 
in  a  quasi  tenant  in  tall,  a  power  to  defeat  his  estate  by  selling 
the  property  and  buying  a  real  estate  to  be  resettled,  is  void.     Ii 
practice,  the  case  was  at  first  treated  as  an  authority  that  th( 
common  power  of  sale  and  exchange  was  void,  as  too  remote,  ii 
it  were  not  expressly  confined  to  lives  in  being,  and  twenty-one 
years  afterwards.     But  it  is  clear  that  Lord  Eldon  did  not  nieai 
to  impeach  the  validity  of  such  powers.     Such  a  power  does  notj 
like  the  power  in  Ware  v.  Polhill,  operate  to  defeat  the  estate 
of  the  minor  tenant  in  tail,  but  transfers  it  from  one 
[  *4G9  *]  property  to  another.   .  *He  is  still  tenant  in  tail ;  where 
as  in  Ware  v.  Polhill  the  effect  of  a  sale  might  be  tc 
defeat  altogether  the  estate  of  the  representative  of  a  person  whe 
died  entitled  to  a  vested  interest  in  the  absolute  property. 

2G.  As  to  the  validity  of  powers  of  sale  and  exchange  not  re-! 
strained  to  lives  in  being  and  twenty-one  years  afterwards,  it  was 
observed  in  former  editions  of  this  work,  that  the  general  prac 
tice  had  been  not  to  confine  them,  and  that  half  the  titles  in  the 
kingdom  depended  on  the  validity  of  such  powers.     That  if  the 
power  were  within  the  line  of  perpetuities,  the  line  could  always 
be  drawn,  and  there  appeared  to  be  no  reason  why  it  should  be 
deemed  void  in  its  creation.     Such  powers,  it  was  observed,  aj 
peared  to  be  valid  on  the  same  ground  that  a  shifting  use  may  be 
limited  to  take  efiect  at  any  period,  however  remote,  where  the 
estate  is  regularly  limited  in  tail,  because  the  tenant  in  tail  maj 
destroy  the  shifting  use  by  a  common  recovery ;  yet  there  the 
estate  of  a  tenant  in  tail  not  having  suflered  a  recovery  may  b« 
defeated  altogether  ;  whereas  under  the  exercise  of  a  power  ol 
sale  and  exchange  there  is  merely  a  change  of  title,  and  not 
destruction  of  interest.     In  point  of  fact  such  a  power  ena])les  the 
alienation  of  property  without  afi'ecting  the  interest  of  the  persoi 
beneficially  entitled  to  the  property. 

27.  It  has  since  been  determined  that  such  a  power  is  validJ 
Thus,  in  Boyce  v.   Ilanning,(2r)  the  estate  was  limited  upon 

(z)  2  Cromp.&  Jcrv.  334. 


UNLIMITED  POWERS   OP   SALE  OP  LEASEHOLDS.  419 

marriage  to  the  husband  for  life  with  a  limitation  to  trustees  to 
preserve  contingent   remainders,  remainder  that  the  wife  might 
receive  a  rent-charge,  and  eubject  thereto,  to  the  children  or  re- 
moter issue  of  tho  marriage,  as  the  husband  and  wife  or  the  sur- 
vivor should  appoint,  and  in  default  of  appointment  to  the  chil- 
dren in  fee,  with  executory  limitations  over  to  the  others,  in  case 
any  died  under  twenty-one  without  leaving  issue  ;  and  if  no  child, 
or  they  all  died  under  twenty-one  without  leaving  issue,  to  the 
husband  in  fee  ;  and  in  the  settlement  there  was  a  pow- 
er to  the  *husband  for  life,  and  after  his  death  for  the  [  *470  ] 
trustees  for  the  time  being  during  .the  minority  of  -any 
child  of  the  marriage,  to  lease,  and  a  power  of  sale  and  exchange 
to  tlie  trustees  or  trustee  for  the  time  being,  with  the  consent  6f 
the  husband  and  wife  or  the  survivor  of  them,  and  after  the  de- 
cease of  such  survivor,  at  tlio  discretion  of  the  trustees  or  trustee 
for  the  time  being  ;  and  there  was  a  power  given  to  appoint  new 
trustees  to  the  husband  and  wife,  and  after  their  decease  to  the 
surviving  or  continuing  trustees  or  trustee,  or  his  or  their  execu- 
tors or  administrators.     A  sale  was  made  under  the  power  in  the 
lifetime  of  the  husband  and  wife ;  and  upon  a  case  sent  by  the 
Master  of  the  Rolls,  the  Court  of  Exchequer  certified  their  opin- 
ion that  a  sale  and  valid  assurance  of  the  property  could  be  made 
under  tlie  power.     Upon  the  observation  in  this  work,  that  the 
power  of  sale  did  not  tic  up  property,  but  enabled  the  alienation 
of  it,  Bayley,  B.  observed,  that  it  enabled  the  trustees  to  sell, 
but  the  owner  in  fee,  who  would  otherwise  be  able  to  sell,  was  in- 
capacitated.(a)     But  of  course  this  applies  only  to   the  rever- 
sioner or  remainder-man,  and  his  power  of  alienation  is  not  fet- 
tered, althougli  the  subject  of  his  transfer  is  still  liable  to  the  con- 
ditions in  the  settlement. 

28.  The  same  decision  has  been  made  in  several  other  cases 
where  the  power  was  general  and  unrestricted,  but  in  all  of  them 
the  sale  was  actually  made  in  the  lifetime  of  the  tenants  for  life 
who  were  in  esse  at  the  date  of  the  settlements.  (6)  The  general 
point  is  set  at  rest,  but  it  may  still  be  a  question  during  what  pe- 
riod the  power  is  capable  of  being  exercised.     In  a  recent  case, 

(a)  2  Cromp.  &  Jerv,  339.  ' 

(*)  Biddle  v.  Perdins,  4  Sim.  135;  Powis  v.  Capron,  Waring  v.  Coventry,  ib.  138, 
140  n. 


420  SUGDEN   ON   POWERS, 

the  Lord  Chancellor  said  that  the  rule  in  the  case  before  him  was 
within  the  permitted  period,  and  there  would  not,  he  thought,  be 
much  doubt  of  its  validity  until  the  expiration  of  that  pcriod.(c) 
29.  It  has  been  said  by  a  learned  writer,(<i)  that 
[  *471  ]  it  seems  *that  the  common  power  of  sale  and  exchange 
in  marriage  settlements  and  wills,  though  not  prescribed 
to  be  exercised  within  a  given  period,  is  good  as  to  the  estates 
for  life,  because  as  to  them  the  power  falls  within  the  limited  pe- 
riod ;  and  also  as  to  estates  tail,  because  the  power  may  be  bar- 
red by  any  tenant  in  tail,  and  is  void  as  to  the  remainder  or  re- 
version in  fee  when  it  falls  into  possession  or  is  discharged  from 
the  estates  tail ;  so  that  the  power  will  fail  when  the  particular 
estates,  perhaps  when  the  estates  tail,  shall  determine. 

80.  The  point  is  not  witliout  difficulty.  The  power,  although 
unlimited  as  to  time,  is,  as  we  have  seen,  good  for  the  lives  of 
parties  living  at  the  date  of  its  creation  ;  and  it  may  be  noio  that 
the  power  miglit  be  held  further  to  exist  for  twenty-one  years 
from  the  death  of  tlic  survivor  of  the  lives.  Where  the  power  is 
to  be  exercised  by  or  with  the  consent  of  a  tenant  for  life,  that  is 
of  itself  a  lawful  limit — the  very  power  points  it  out — and  so  far 
is  good.  If  the  power  proceed  to  authorize  the  trustees,  after  the 
death  of  the  tenant  for  life,  and  during  the.  minority  of  tenants  in 
tail,  to  sell  or  exchange,  that  might  be  deemed  good  j)*'o  tanto, 
that  is,  during  the  twenty-one  years  from  the  death  of  the  tenant 
for  life.  If  the  Court  should  go  further,  the  power  might  travel 
through  generations.  If  it  might  be  exercised  legally  against  a 
tenant  in  tail,  although  really  for  his  benefit,  it  would  be  on  the 
ground  that  the  tenant  in  tail  might  bar  the  power  if  he  pleased, 
and  although  he  could  not  do  so  during  his  minority,  when,  if  at 
all,  the  power  would  be  exercised  against  him,  yet  an  executory 
limitation  or  shifting  use  after  an  estate  tail  is  open  to  the  same 
objection,  for  the  event  may  happen  during  the  minority  of  the 
tenant  in  tail,  and  before  it  is  in  his  power  to  bar  the  entail,  and 
yet  long  after  the  legal  limit  of  such  limitations,  if  they  are  not 
preceded  by  an  estate  tail.  It  would  be  difficult  to  distinguish 
the  cases.  If  an  exercise  of  the  power  after  lives  in  being  and 
twenty-ouQ  years  were  allowed  on  this  ground,  it  of  course  could 

(c)  4  Myl.  &  Cra.  482,  483.  {d)  2  Prest.  Abstr.  158. 


POWERS   OF   SALE   AND   EXCHANGE.  421 

not  be  avoided  as  against  the  remainder  or  reversion 
*in  fee,  when  that  falls  into  possession  :  for  unless  the  [  *472  ] 
power  continue  in  force  so  as  to  carry  the  fee,  it  cannot 
be  exercised,  and  if  it  can,  the  same  ground  that  gives  it  validity 
against  the  estates  tail  will  support  it  against  the  remainder  or 
reversion,  so  that  an  execution  of  the  power  previoitsly  to  the  re- 
mainder or  reversion  in  fee  falling  into  possession,  would  be  valid. 
But  clearly  after  the  remainder  or  reversion  in  fee  had  fallen  into 
possession,  the  power  could  not  be  exercised.  It  is  not  improba- 
ble that  the  power  may  be  sustained  throughout  its  whole  range. 
There  appears  to  be  no  principle  and  authority  sufficient  to  sup- 
))Ort  such  a  decision,  (e) 

31.  A  case  decided  since  the  last  edition  of  this  work  goes  to 
this  extent, (/)  for  although  the  power  was  to  lease,  yet  as  the 
power  was  an  unlimited  one  to  trustees,  the  question  was  the  same  ; 
and  the  Vice-Chancellor  held,  that  as  in  due  time  a  recovery 
might  be  suffered  [or  the  entail  barred,]  in  which  case  the  power 
would  be  destroyed,  the  objection  to  the  power  on  the  ground  of 
perpetuity  could  not  be  sustained.  And  in  a  later  case  in  Ireland, 
the  Chancellor  observed,  that  the  question  had  often  been  dis- 
cussed in  recent  times,  how  far  the  general  powers  of  sale  and  ex- 
change, which  are  usual  in  settlements,  are  good,  and  their  validity 
had  been  doubted.  He  could  not  say  that  he  entertained  any  doubt 
upon  the  point.  He  thought  they  were  perfectly  good,  although 
not  in  terms  confined  within  the  rule  against  perpetuities,  and 
upon  this  principle,  that  such  powers  may  be  barred  by  the  owners 
of  the  preceding  estate  tail ;  and  if  once  an  estate  in  fee  has  been 
acquired  by  any  one  claiming  under  the  limitations  of  the  settle- 
ment, by  which  the  power  was  created,  it  naturally  ceases.  (^) 

32.  Here  we  may  observe,  that  in  a  settlement  made  under  the 
direction  of  a  Court  of  Equity  in  pursuance  of  a  trust  or  contract, 
a  power  of  revocation  to  be  executed  with  the  consent 

'of  the  Court  cannot  be  introduced  in  order  to  guard  [  *473  ] 
against  any  mistake  in  the  settlement.  (A) 

33.  Some  powers  of  sale  are  created  in  terms  which  permit  their 

(f )  See  2  Kee.  671. 

(/)   SVallis  y.  Freestone,  10  Sim.  225. 

(?)  4  Dru.  &  War.  32. 

(A)  Banks  v.  Lady  Le  Despencer,  11  Sim.  508. 

Vol.  II.  36 


1 


422  SUGDEN  ON   POWERS. 

exercise  only  in  the  event  of  another  estate  proving  deficient  tc 
answer  certain  charges,  or  another  estate  being  first  settled  to  th( 
same  uses,  or  the  like.  And  as  these  conditions  consist,  not  mere 
ly  of  form,  but  arc  of  iho  very  essence  of  the  gift  or  reservation 
they  perhaps  more  than  any  other  require  a  strictly  literal  per 
formance.(l) 

34.  Therefore,  where  a  power  was  given  to  trustees  to  sell  foi 
the  purpose  of  raising  as  much  money  as  the  personal  estate 
should  prove  deficient  in  paying  debts,  it  was  decided  by  Jones, 
Croke,  and  Barkcley,  Justices,  that  the  condition  was  a  prece- 
dent condition,  and  that  the  power  would  not  authorize  a  sale  un- 
less there  was  an  actual  deficiency,  and  then  so  much  only  of  the 
estate  could  be  sold  as  was  sufficient  for  the  payment  of  the  debts, 
and  consequently  that  the  amount  of  the  debts  and  the  value  oi 
the  personal  estate  ouglit  to  be  shown,  so  that  the  Court  might 
judge  whether  the  condition  was  performed  or  not.(i)  Great 
dififieulty  frequently  arises  in  practice  from  powers  like  this,  as  it 
is  difficult  to  satisfy  a  purchaser  of  the  deficiency,  and  the  actual 
extent  of  it.  It  should,  therefore,  in  these  cases  invariably  be' 
provided,  that  the  power  shall,  quoad  a  purchaser,  be  well  exe- 
cuted, although  there  be  no  deficiency,  and  that  he  shall  not  be 
bound  to  inquire  into  or  ascertain  whether  there  actually  be  any 
deficiency.  (A;) 

35.  So  in  a  case,(/)  where  in  a  strict  settlement  it  was  provid- 
ed, that  in  case  the  husband  and  wife,  or  the  survivor,  should  be 

desirous  to  sell  the  estate,  it  should  be  lawful  for  them 
[  *474  ]  to  revoke  the  uses  of  the  settlement,  and  for  the  *trus- 

tees  to  sell  the  same  for  the  best  price,  and  convey  the 
same  to  a  purchaser,  so  as  that  the  purchase-money  was  paid  to 
them,  and  not  the  husband  and  wife,  to  be  laid  out  by  the  trustees 
in  the  purchase  of  other  estates,  at  the  request  of  the  husband  and 
wife,  or  the  survivor,  to  be  settled  to  the  same  uses.     The  trustees 

(i)  Dike  v.  Ricks,  Cro.  Car.  335;  Wm.  .Tones,  327;  1  Ro.  Abr.  329,  pi.  9;  3  Vin. 
Abr.  419,  pi.  9;  and  see  Popham  v.  Hobart,  1  Cha.  Ca.  280;  and  Culpepper  v. 
Aston,  2  Cha.  Ca.  115.  221,  as  explained.  Treat.  Purch.  6th  edit.  p.  514;  and  see 
Bowman  v.  Matthews,  For.  Exch.  Rep.  163.  * 

{k)  See  Treat.  Purch. 

(/)  Doe  V.  Martin,  4  T.  Rep.  39. 

(1)  See  Hall  v.  McLaughlin,  2  Bradf.  Surr.  Rep.  115. 


CO>rDITIONAL  POWERS   OP   SALE   AND   EXCHANGE.  423 

were  authorized  to  invest  the  money  until  a  sale,  and  to  pay  the 
dividends  to  the  persons  entitled  to  the  real  estate  ;  and  the  re- 
ceipts of  the  trustees  were  made  a  suflficient  discharge  to  the  pur- 
chaser. By  deed  the  husband  and  wife  revoked  the  uses,  in  order 
that  the  fee  might  be  sold  according  to  the  intent  of  the  settle- 
ment ;  and  by  another  deed,  the  estate  was  under  the  power  ap- 
pointed to  the  purchaser  in  fee,  who  paid  his  purchase-money. 
But  the  heir  of  the  surviving  trustee  was  an  infant  of  tender  years, 
and  part  of  the  money  was  applied  to  the  payment  of  a  prior 
mortgage, (I)  and  the  residue  of  the  money  really  reached  the 
hands  of  the  husband,  and  no  part  of  it  was  ever  invested.  The 
purchaser's  agent  was  privy  to  this  fraudulent  disposition  of  it. 
After  three  arguments,  the  Court  held  the  revocation  and  ap- 
pointment altogether  void.  Lord  Kenyon  was  clearly  of  opinion 
that  the  deed  of  revocalion,  taking  the  whole  of  the  power  to- 
gether, was  no  legal  revocation.  They  had  only  a  power  to  revoke, 
on  condition  of  re-investing  the  money  in  the  purchase  of  another 
estate  for  their  children.  And  it  would  be  strange  to  say  that  any 
interval  might  happen  between  the  sale  and  purchase  of  that  other 
estate,  [that  is,  it  could  be  maintained  that  the  purchase  of  ano- 
ther estate  might  be  delayed  for  any  period,  however  long]  ;  it 
was  all  to  be  considered  as  one  deed  and  one  act.  And  though 
the  purchase  money  need  not  have  been  re-invested  immediately, 
yet  it  was  to  lie  in  the  hands  of  the  trustees  until  a  proper  oppor- 
tunity should  offer  of  so  re-investing  it.  He  considered  the  pur- 
chaser bound  Ijy  the  fraud  of  liis  agent.  He  then  stated,  that  the 
power  was  restrained  so  as  that  the  money  was  paid  to 
the  'trustees,  and  by  them  invested  in  other  estates  ;  [  *475  ] 
tlie  vj/iole  therefore  ivas  considered  as  one  transaction. 
As,  therefore,  the  money  was  only  paid  to  the  infant  trustee 
for  form's  sake,  lie  held  the  whole  transaction  absolutely  void,  as 
well  in  a  court  of  law  as  a  court  of  equity.  Mr.  Justice  Ashurst 
considered  the  power,  not  an  absolute,  but  a  conditional  one. 
Two  conditions  were  annexed  to  the  execution  of  the  power  :  the 
one  that  the  money  be  paid  to  the  trustees  :  the  other,  that  it  be 
laid  out  in  the  purchase  of  other  lands  to  be  settled  to  the  same 
uses.     Neither  of  tlicse  had  been  complied  with,  and  consequently 

(I)  It  does  not  appear  that  the  purchaser  obtaiued  a  transfer  of  this  mortgage. 


424  SUGDEN   ON   POWERS. 

the  deed  of  revocation  was  a  mere  imllity.  Mr.  Justice  Buller 
and  Mr.  Justice  Grose  delivered  opinions  to  the  same  effect.  The 
latter  observed,  that  this  was  merely  a  conditional  power,  which 
must  be  considered  altogether  ;  and  no  part  of  the  execution  of 
it  can  be  good,  unless  the  whole  l)e  so. 

3G.  The  point  sought  to  be  established  was,  that  the  deed  of 
revocation  standing  yv^'r  se,  destroyed  at  law  the  estate  of  the 
children,  sa  as  to  prevent  their  right  to  recover.  But  this  was 
overruled,  and  the  case  establishes  this  important  rule,  that  where 
a  revocation  is  authorized  for  a  particular  purpose,  it  is  to  be 
considered  as  part  of  the  entire  transaction,  and  if  that  is  so  radi- 
cally affected  with  fraud  as  to  be  void  even  at  law,  the  revocation 
as  part  of  it,  although  good  on  the  face  of  it,  will  be  void  also.(m) 
It  would  be  dangerous  to  carry  this  rule  too  far.  In  this  very 
case,  for  example,  the  purchaser  paid  off  a  prior  mortgage,  and 
yet  the  estate  was  taken  from  him  without  making  any  allowance 
to  him  in  respect  of  it. 

37.  But  the  Judges  expressed  a  clear  opinion,  that  the  power 
was  coupled  with  two  conditions  :  1.  That  the  trustees  should  re 
ceive  the  money ;  2.  That  tliey  should  re-invest  it.     That  tlie 
power  was  a  conditional  one  admits  of  no  doubt,  but  that  there 
were  two  conditions  annexed  to  it,  or  one  with  two  branches, 

could  not  perhaps  be  maintained.  The  purchaser  was 
[  *4T6  ]  *bound  to  see  that  the  purchase-money  reached  the  hands 

of  trustee,  but  when  there,  bona  fide,  the  clause  in  the 
settlement,  that  the  trustee's  receipt  should  be  a  discharge,  made 
the  receipt  a  full  exoneration  of  the  purchaser.  An  immediate  re- 
investment of  the  purchase-money  was  neither  required  nor  con- 
tem])lated  by  the  settlement,  and  the  purchaser  could  have  no 
further  control  over  the  money,  as  the  power  expressly  required 
that  it  should  reach  the  hands  of  trustees,  and  remain  there  to  be 
re-invested.  If,  therefore,  the  transaction  had  been  bona  fide,  the 
purchaser  would,  it  should  seem,  have  had  a  good  title  upon  pay- 
ment of  the  purchase-money  to  the  trustee.  In  Doe  v.  Martin  the 
infancy  of  the  trustee,  who  had  active  duties  to  perform,  presented 
a  serious  obstacle  in  the  way  of  a  sale  under  the  power. 

38.  In  tlie  later  case  of  Roper  v.  Halifax, (w)  the  power  was 

(77))  Vide  infra,  Cockerell  v.  Cholmely. 
(rj)  Apr.  No.  3. 


CONDITIONAL  POWERS  OF  SALE  AND  EXCHANGE.      425 

for  the  trustees  to  sell,  with  the  consent  of  the  parties,  so  as  that 
the  money  to  arise  by  sale  should  be  invested  in  other  estates  ; 
and  there  was  the  usual  clause  that*  the  trustee's  receipts  should 
be  discharges,  and  the  usual  clause  that  they  might  lay  out  the 
moneys  in  the  funds,  &c,  until  a  purchase  could  be  found.  The 
question  was,  whether  a  conveyance  to  a  purchaser  mndcr  the 
power  would  be  affected  if  the  purchase  money  should  not  be  laid 
out,  and  the  lands  purchased  therewith  settled  as  mentioned  in 
the  settlement.  The  Court  was  of  opinion  that  a  conveyance  to 
a  purchaser  would  not  be  affected  by  this  event  because  it  was  ex- 
pressly provided,  that  the  receipt  of  the  trustee  should  be  a  dis-  ^ 
charge  to  the  purchaser.  There  was  no  case  from  which  a  con- 
trary inference  could  be  drawn.  The  case  of  Doe  v.  Martin  was 
of  a  very  different  description  from  the  present ;  there  the  money 
was  to  be  paid  into  the  hands  of  trustees,  and  it  was  agreed  that 
the  purchasers  should  not  be  bound  to  see  to  the  application  of  it ; 
but  the  question  there  was,  whether  the  money  was  bom 
fide  paid ;  there  was  an  infant  trustee,  and  *they  put  [  *477  ] 
the  money  in  his  hands.  That  case  is  wholly  unlike 
the  present,  and  cannot  govern  it.  They  were  of  opinion  that  by 
the  express  terms  of  the  deed,  provided  the  transaction  was  bon 
fide,  the  receipt  was  a  sufficient  discharge.  This  decision  places 
the  point  upon  a  right  footing. 

39.  Again,  where  a  power  of  revocation  was  given  with  the 
consent  of  trustees,  so  that  at  or  before  the  revocation  other  estates 
were  assuretl  of  equal  or  better  value  to  the  like  uses,  it  was  con- 
sidered clear,  that  if  an  equitable  estate  had  been  conveyed,  the 
power  would  have  been  badly  executed  at  laiv,  but  whether  in 
equity  was  doubted  ;  and  it  was  also  thought  that  a  purchaser  of 
the  settled  estates  would  have  been  bound  to  have  shown  the 
value  of  the  substituted  estates. (o) 

40.  And  in  a  case  where  a  power  of  revocation  was  given,  so  as 
at  the  time  of  such  revocation  he  settled  other  lands  free  from  in- 
cumbrances of  as  good  or  better  yearly  value,  Lord  Hardwickc 
was  clearly  of  opinion  that  the  power  of  revocation  was  not  well 
executed,  as  the  substituted  estate  was  not  of  equal  value,  and 
was  charged  with  an  incumbrance. (;?) 

(o)  Cox  V.  Chamberlaiu,  1  Ves.  jun.  C31 
(p)  Burgoigne  v.  Fox,  1  Atk.  575. 

36* 


426  SUGDEN   ON   POWERS. 

-41.  In  Lamplugh  v.  Hebden,(«7)  in  a  marriage  settlement  a 
proviso  Avas  inserted,  that  if  the  husband  should  settle  other  free- 
hold estates  of  100/.  a  year  tt)  the  same  uses,  the  settled  estate 
:<houkl  vest  in  the  husband  in  fee.  He  exercised  the  power  by 
settling  other  estates,  and  then  sold  the  estate  originally  settled  ; 
and  Lord  Hardwicke  held  that  it  was  incumbent  on  tlie  seller  to 
make  out  that  he  had  ellcctually  settled  other  lands  of  the  value 
of  100/.  a  year,  before  he  could  compel. the  purchaser  to  take  the 
.title. 

42.  In  Hougham  v.  Sandys, (r)  a  power  of  sale  and 
[  *478  ]  *exchangc  was  given  to  the  husband  and  wife,  with 
consent  of  the  trustees  so  always  that  the  moneys  aris- 
ing by  such  sale  should  be  laid  out  in  the  purchase  of  other  es- 
tates, and  the  estates  so  to  be  purchased,  or  the  estates  to  be 
taken  in  exchange,  should  be  settled  to  the  uses  of  the  settle- 
ment, and  then  and  in  such  case  the  uses,  &c.  thereby  declared 
of  the  estates  so  sold  or  given  in  exchange  should  cease  ;  and  it 
was  held  that  the  legal  estate  would  not  under  the'  execution  of 
the  power  vest  in  a  purchaser,  unless  it  had  subsequently  hap- 
pened that  the  purchase-money  was  laid  out  in  the  purchase  of 
lands  to  be  settled  to  the  uses  of  the  lands  sold. 

43.  These  cases  should  not  be  dismissed  without  an  observa- 
tion on  the  impolicy  of  the  settlements  upon  which  they  arose  ; 
they  tend  only  to  expense  and  trouljle  in  practice,  as  a  purchaser 
could  not  in  general  be  compelled  to  complete  his  purchase  with- 
out the  sanction  of  a  decree  in  equity,  and  there  are  few  cases 
in  which  he  could  be  advised  to  accept  the  title  without  a  decree. 
It  would  be  much  better  wholly  to  omit  a  power  of  sale  in  a  set- 
tlement, than  to  fetter  its  operation  by  requisitions  like  these. 
The  usual  power  of  sale  is  ^exactly  adapted  to  effectuate  the  in- 
tention of  the  parties :  the  trustees  are  authorized,  with  the 
proper  consents,  to  sell  the  estate  absolutely,  and  are  directed  to 
lay  out  tlie  money  in  the  purchase  of  other  estates  ;  but  this  is 
not  made  a  condition  affecting  the  execution  of  the  power ;  on 
the  contrary,  the  trustees  are  authorized  to  give  receipts  to  the 
purchaser,  which  it  is  declared  shall  exonerate  him  from  seeing 

(7)  1  Dick.  78;  Barnari.  C.  C.  371 ;  2  Eq.   Ca.  Abr.  170,  pi.  29.    See  Howell  v. 
George,  1  Mad.  1. 
(r)  2  Sim.  95.  145. 


I 


POWER   OF   SALE   AND   EXCHANGE.  427 

to  the  application  of  the  money ;(«)  and  they  are  empowered  to 
lay  out  the  money  at  interest,  until  invested  in  the  purchase  of  an 
estate.  This  plan  has  l)een  adopted  from  a  conviction  of  the 
mischievous  tendency  of  other  modes. 

44.  Where  an  estate  was  devised,  charged  with  debts,  to 
trustees  in  fee,  upon  trusts,  in  strict  settlement  with  a  , 
power  *of  sale  and  re-investment  of  the  money,  it  was  [  *479  ] 
held  that  the  charge  gave  the  trustees  a  power  by  im- 
plication to  mortgage  for  the  debts ;  and  as  they  had  sold  one 
estate  and  bought  another,  which  was  conveyed  to  the  uses  and 
subject  to  the  powers  in  the  will,  the  substituted  estate  was  held 
to  be  still  liable  to  the  implied  power  to  raise  money  for  the 
debts.  (0 

45.  We  may  here  observe  that  a  deed,  in  execution  of  a  power 
substituting  one  estate  in  settlement  for  another,  which  simply 
conveys  tlie  new  estate  to  the  old  uses,  will  not  operate  to  charge 
it  with  the  old  uses  beyond  the  extent  to  which  the  old  estate  is 
effectually  discliarged  from  those  uses  by  the  valid  execution  of 
the  power,  (w) 

46.  Where  an  instrument  does  not  by  force  of  its  direction  to 
sell,  convert  a  real  estate  into  personalty  out  and  out,  but  the 
trustees  haVe  a  discretion,  and  may  convert  or  forbear  to  convert ; 
whatever  remains  unconverted  by  tlie  trustees  will  retain  its  orig- 
inal character,  that  is,  the  real  estate  unconverted  remains  real 
estate,  (a:) 

47.  Where  a  condition  is  imposed  merely  with  a  view  to  ascer- 
tain the  annual  value  of  the  i»ropcrty  to  be  appointed,  if  the  cir- 
cumstances to  which  the  condition  refers  do  not  exist,  the  donee 
may  appoint  property  of  the  actual  annual  value  prescribed. (y) 

48.  It  is  clear  that  a  power  to  make  partition  of  an  estate  will 
not  authorize  a  sale  or  exchange  of  it ;  but  it  has  frequently  been 
a  question  amongst  conveyancers,  wliether  the  usual  power  of  sale 
and  exchange  dbes  not  authorize  a  partition,  and  several  parti- 
tions have  been  made  by  force  of  such  powers  under  the  direction 

(s)  Sec  now  7  &  8  Vict.  c.  7C,  c.  10. 

(0  Ball  V.  Harris,  8  Sim.  485. 

(w)  Greenhouse  v.  Gibbeson,  10  Bing.  363;  4  Moo.  &  S.  198.     Vide  supra  &  qu. 

(x)  Waltei"  V.  Maunde,  I'J  Ves.  jun.  424. 

(y)  Lidwell  v.  Nolland,  1  Bligh,  99. 


428  SUGDEN   ON   POWERS. 

of  men  of  eminence.  This  point  underwent  considerable  discus- 
sion on  the  title,  which  afterwards  led  to  the  case  of 
[  *480  ]  Abel  v.  Hcathcote.(:r)  *Mr.  Fcarne  tliought  that  the 
power  did  authorize  a  partition,  on  the  ground  that  the 
partition  was  in  effect  an  exchange.  The  power  was  to  make 
sale  of,  or  convey  in  exchange,  the  estate  for  the  best  or  such 
other  equivalent  interest  in  lands  as  the  trustees  should  think 
proper,  and  for  that  purpose  to  revoke  and  limit  new  uses.  The 
case  was  first  licard  before  the  Lords  Commissioners  Eyre,  Ash- 
urst,  and  Wilson.  They  all  thought  that  the  power  was  to  receive 
a  liberal  construction,  as  its  object  was  to  meliorate  the  estate. 
Eyre  thought,  that  upon  the  word  sell,  the  trustees  should  have 
a  power  of  making  partition,  because  it  was  in  effect  to  take  quite 
a  new  estate.  And  Ashurst  and  Wilson  thought,  that  whatever 
power  might  be  derived  from  the  word  sell,  the  other  words  of 
the  power,  convey  for  an  equivalent,  were  sufficient.  They,  how- 
ever, ultimately  declined  to  decide  the  question.  Upon  the  cause 
coming  on  before  Lord  Rosslyn,  he  determined  that  the  power 
was  well  executed,  and  founded  his  opinion  upon  its  being  in  ef- 
fect an  exchange,  as  the  consequences  and  effects  of  a  partition 
and  exchange,  as  to  the  interests  of  the  parties,  are  precisely  the 
same. 

49.  Nearly  the  same  point  was  again  agitated  in  the  late  case 
of  M' Queen  and  Farquhar.(a)  There,  however,  the  power  in 
terms  only  authorized  a  sale.  Upon  the  first  hearing.  Lord  El- 
don  expressed  his  opinion  that  even  a  power  to  exchange  would 
not  authorize  a  partition :  and  in  delivering  judgment  he  expressed 
the  same  opinion  more  strongly,  and  said  he  should  rather  have 
been  inclined  to  decide  Abel  and  Heathcote  upon  the  words, 
"  such  other  equivalent  interest  in  lands,"  <fec.  But  without  in- 
fringing upon  that  case,  he  determined  that  a  power  of  sale  simply 
does  not  authorize  a  partition,  whatever  a  power  of  exchange 
may  do,  and  in  a  much  later  case  he  expressed*  the  same  opin- 
ion. (6) 
[  *481  ]  *oO.  Until  the  question  shall  receive  a  further  decis- 
ion, it  can  scarcely  be  considered  clear  that  a  power  to 

{z)  4  Bro.  C.  C.  278;  2  Ves.  jun.  98. 

(a)  11  Ves.  457. 

(6)  4  Bro.  C.  C.  77,  by  Belt 


I 


WHERE   PARTITION   IS   AUTHORIZED.  429 

exchange  will  authorize  a  partition.  It  is  at  least  very  doubtful 
upon  what  ground  Abel  and  Heathcote  was  decided,  whether 
upon  the  power  of  sale,  or  upon  the  power  of  exchange,  and  the 
principle  of  Lord  Eldon's  decision  is  in  complete  opposition  to 
that  of  Judges  in  Abel  v.  Heathcote.  They  contended  that  the 
power  was  for  the  melioration  of  the  estate,  and  was  therefore  to 
receive  a  liberal  construction.  Lord  Eldon  insisted  that  the 
terms  and  limitations  of  a  power  must  be  observed  according  to 
the  contract,  or  the  new  use  will  not  arise.  And  it  may  be  ob- 
served, that  if  Abel  and  Heathcote  cannot  be  defended  on  the 
broad  general  ground  of  a  ]mrtition  being  authorized  by  a  power 
of  exchange,  it  certainly  cannot  be  supported  by  the  words  "  such 
other  equivalent  interest"  in  lands,  <fcc.  For  the  power  did  not 
authorize  an  exchange,  or  a  disposition  for  any  other  equivalent 
interest  in  lands,  but  simply  an  exchange  of  the  settled,  estate  for 
an  equivalent  interest  in  other  lands.  These  or  words  to  the  like 
effect  must  of  necessity  be  expressed  or  implied  in  every  power  of 
exchange,  and  cannot  by  any  license  be  cut  out  and  read  as  au- 
thorizing a  distinct  independent  act. 

51.  In  the  Attorney-general  v.  Hamilton, (c)  Sir  Thomas  Plum- 
er,  V.  C,  thought  it  not  safe  to  act  upon  the  doctrine  that  a  pow- 
er to  sell  or  exchange  authorized  a  partition.  A  partition  and 
an  exchange  are,  he  observed,  well  known  modes  of  assurance, 
perfectly  distinct  from  each  other,  each  having  its  own  rules.  A 
power  to  make  partition  would  not  warrant  an  exchange.  Upon 
the  ultimate  decision  in  Abel  v.  Heathcote,  he  observed,  that  Lord 
Rosslyn  thought,  contrary  to  Lord  Commissioner  Eyre,  a  partition 
was  clearly  in  the  contemplation  of  the  parties  creating  the  pow- 
er. If  (Sir  Thomas  Plumer  added)  it  was,  it  was  singular  the 
word  partition  should  not  have  been  mentioned  in  the 

power.     *Lord  Rosslyn  relied  much  upon  the  possession  [  *482  ] 
of  the  estate,  and  the  means  tliereby  aftbrded  of  de- 
fending an  ejectment.  (//) 

52.  But,  as  Lord  Rosslyn  has  observed,  this  objection  may  be 
obviated  where  there  is  a  power  of  sale.  The  undivided  part  of 
the  estate  may  be  sold,  the  trustees  may  receive  the  money  and 
then  lay  it  out  in  the  purchase  of  the   divided  part.(^)  and  al- 

(c)  1  Madd.  214.  {d)  See  1  Madd.  224,  225. 

(«)  2  Vcs.  juu.  101.     See  1  Madd.  223. 


430  SUGDEN   ON  POWERS. 

though  the  sale  is  merely  fictitious  in  order  to  effect  the  partition, 
yet  it  should  seem  that  the  transaction  cannot  be  impeached.  The 
same  observation  applies  to  an  exchange  under  a  power  of  sale. 
The  estate  may  be  sold  ta  the  owner  of  the  estate  intended  to  bo 
taken  in  exchange,  and  then  the  money  may  be  out  in  the  pur- 
chase of  this  last  estate. 

53.  Wliere  an  excliange  is  made  under  a  power  of  sale  and 
exchange,  althoug|i  the  power  is  silent  as  to  paying  money  for 
owelty  of  exchange,  yet  the  donees  of  the  power  may  make  such 
payment ;  nor  will  the  death  of  one  of  the  parties  to  an  exchange 
under  the  power  before  the  transaction  is  completed,  invalidate  a 
legal  execution  of  the  power  :  no  analogy  exists  between  such  a 
transaction  and  an  exchange  at  common  law.(/) 

54.  It  frequently  happens  that  a  tenant  for  life  of  an  estate  in 
strict  settlement,  with  the  -ultimate  remainder  to  himself  in  fee, 
with  powers  of  leasing,  jointuring,  chargingportions,  sale  and  ex- 
change, &c.  acquires  the  fee  by  the  failure  of  the  limitations  inter- 
mediate between  his  life-estate  and  remainder :  and  it  may  be 
questioned  whether  all  these  powers  continue  after  the  accession  of 
the  fee.  Perhaps  the  better  opinion  is,  that  the  powers  cannot  bo 
exercised  after  the  union  of  the  estates,  on  the  ground,  not  that 
the  powers  are  merged,  but  that,  according  to  the  true  construc- 
tion of  the  settlement,  they  were  not  to  be  exercised 

[  *483  ]  *aftor  the  determination  of  the  limitations  which  they 
were  intended  to  over-reach.  To  this  there  could  be 
no  objection  ;  it  would  not  affect  any  prior  exercise  of  the  power, 
although  by  will.  Of  Course  where  the  power  has  l)een  executed 
by  deed,  the  accession  of  the  fee  will  not  invalidate  the  execu- 
tion. 

55.  In  Mortlock  v.  Buller,(^)  the  estate  was  settled  to  trustees 
for  a  term,  to  raise  pin-money,  remainder  to  the  husband  for  life, 
with  the  usual  remainder  to  trustees  to  preserve  contingent  re- 
mainders, remainder  to  the  wife  for  life,  remainder  to  trustees  for 
a  term,  to  raise  portions  for  younger  children,  remainder  to  the 
sons  of  the  marriage  in  tail,  remainder  to  the  husband  in  fee,  with 

power  of  sale  and  exchange  in  the  trustees,  to  be  exercised  at 

(/ )  Bartram  v.  Whichcote,  0  Sim.  8G, 
ig)  10  Ves.  jun.  292. 


"WHERE  PARTITION  IS  AUTHORIZED.  431 

any  time  or  times,  at  the  request  of  the  husband  and  wife,  or  the 
survivor.  The  wife  died  in  the  husband's  lifetime,  without  issue. 
Lord  Eldon,  according  to  the  report,  stated,  that  the  trustees  had 
only  an  estate  to  preserve  contingent  remainders  during  the  ex- 
istence of  the  marriage  ;  and  in  the  event  that  had  happened,  the 
husband's  life-estate  and  remainder  in  fee  being  brought  together, 
in  law  the  power  of  the  trustees  is  extinguished  and  gone.  The 
estate  to  preserve  contingent  remainders  was  of  course  still  sub- 
sisting, and  the  life-estate  and  remainder  in  fee  were  only  execut- 
ed sitb  modo.  The  substantial  ground  upon  which  such  a  pow_ 
er  in  trustees  should  be  held  not  to  be  i^uljsisting  is,  that  tlie  in- 
tention of  the  settlement  was  to  confine  it  to  the  time  during  wliich 
the  uses  of  the  settlement  existed.  By  the  decree,  which  was 
drawn  up  by  the  Lord  Chancellor  himself,  it  appears  that  he  did 
not  intend  to  decide  the  point. 

56.  Li  Trower  v.  Knightly  an  estate  was  devised  to  trustees  in 
fee,  in  trust,  as  to  a  moiety  for  each  of  two  daughters  of  the  tes- 
tator and  their  issue  at  twenty-one,  with  a  power  to  the  trustees 
to  sell.  One  daughter  died,  and  her  children  attained 
twenty-one,  and  were  entitled  to  the  fee  of  one  *moiety.  [  *484  ] 
The   trustees   sold  the  entirety ;  and  the   Vice-Chan- 

cellor  held  that  the  powers  contained  in  the  trustees  until  there 
were  owners  competent  to  deal  with  the  whole  estate,  and  conse- 
quently supported  the  sale. (A) 

57.  In  the  above  case  there  was  a  power  in  the  settlement,  in 
case  the  trustees  or  any  new  trustee  or  trustees  should  die,  <fcc., 
before  the  trusts  xu ere  fully  perforr)ied  and  accomplished.,  then  for 
the  trustees  for  the  time  being,  or  the  surviving  or  remaining  acting 
trustee  or  trustees  for  the  time  being,  with  the  consent  of  the  ten. 
ants  for  life  for  the  time  being,  in  possession,  and  if  dead,  then  as 
the  trustees  should  see  fit,  to  appoint  new  trustees,  and  a  proviso 
that  it  should  be  lawful  for  the  trustees  for  the  time  being  during 
the  continvance  of  the  trusts,  to  lease  in  possession  at  rack  rent ; 
and  it  was  provided  that  it  should  be  lawful  for  trustees  for  the 
time  being,  during-  the  continuance  of  said  trusts,  as  and  when  they 
should  see  fit,  to  sell  all  or  any  part  or  parts  of  his  freehold  and 
leasehold  messuages,  &c.,  and  to  invest  the  purchase-money  by 

{h)  6  Madd.  134;  S.  C.  MS. 


432  '  StJGDEN   ON  POWERS. 

way  of  mortgage,  or  in  the  funds,  &c.,  to  be  held  upon  the  trusts 
thereinbefore  declared  of  his  estates. 

The  objections  to  the  sale  were  :  1.  That  there  were  two  chil- 
dren who  had  attained  twenty-one,  and  the  trusts  of  the  will  had 
ceased  to  have  continuance,  and  the  power  was  determined ;  2. 
That  there  had  been  a  conveyance  made  by  the  daughter  on  her 
marriage,  as  her  fourth,  in  favour  of  her  husband  and  herself. 
The  argument  out  of  Court  in  support  of  these  objections  was  : 
1.  That  undivided  shares  belonging  to  different  owners  were  dis- 
tinct properties  :  2.  That  where  lands  held  in  severalty  vest  in 
fee,  powers  cease  ;  Mortlock  v.  BuUer  ;  3.  That  here  the  two 
children  had  acquired  the  fee.  Even  as  to  the  powers  of  appoint- 
ing new  trustees  and  powers  of  leasing,  the  powers,  it  was  said, 
were  gone,  because  the  trusts  had  ceased.  Then  the  power 
wholly  ceased,  for  it  was  intended  to  apply  only  to  the 
[  *485  ]  *entif  ety  ;  unless  '  part  or  parts '  was  construed  to  mean 
2mdivided  parts,  which  was  too  hazardous. 

58.  In  a  later  case(?')  where  some  shares  of  an  estate  were  de- 
Wsed  to  some  of  the  children  of  the  testator  in  fee,  and  one  share 
was  devised  to  two  of  the  sons  in  trust  for  William,  another  son, 
for  life,  and  after  his  death  to  convey  the  same  to  his  children,  &c.; 
and  another  share  was  given  to  the  same  sons  in  trust  for  his 
daughter  until  she  should  be  married,  or  attain  twenty-five,  and 
upon  her  attaining  twenty-five,  if  unmarried,  to  convey  the  same 
to  her  ;  but  if  she  should  marry  before  that  age,  to  convey  it  for 
the  benefit  of  her -and  her  issue,  and  her  husband.  And  the  tes- 
tator gave  to  his  sons  and  the  survivor,  and  the  heirs  and  assigns 
of  such  survivor,  a  power  at  any  time  during  the  life  of  his  wife, 
who  took  certain  interests  in  the  estates,  or  at  any  time  after- 
v;ards  during-  the  continuance  of  the  trusts  by  the  will  reposed  in 
them,  with  the  wife's  consent,  and  afterwards  with  the  consent  of 
the  person  or  persons  for  the  time  being  in  possession  or  entitled 
to  the  rents,  or  of  their  own  authority  if  such  person  or  persons 
should  be  in  his  or  their  minority,  to  sell  all  or  any  of  the  real 
estates  before  devised,  or  such  part  or  parts  thereof  as  should  be 
subject  to  such  continuing  trusts,  and  the  money  was  to  be  ap- 
plied accordingly.     William  died,  leaving  children  who  were  still 

(i)  Wood  V.  White,  2  Kee.  665,  4  Myl.  &  Cra.  460. 


WHERE  POWERS  CONTINUE.  •  438 

infants,  and  the  daughter  married  under  twenty-five,  and  her  share 
of  the  moneys  to  arise  by  sale  (the  settlement  contemplating  that 
the  power  would  be  executed)  was  settled  according  to  the  will. 
And  it  was  held  that  although  the  trusts  were  not  perfornred,  thej" 
were  not  continuing  so  as  to  authorize  a  sale  under  the  power, 
for  William's  share  ought  to  have  been  conveyed  to  his  children 
upon  his  death,  and  the  daughter's  upon  her  marriage.  And  it 
was  considered  that  by  the  death  of  William,  although  his  sons 
were  still  infants,  and  by  the  marriage  of  Eliza,  the  trusts  of  the 
will  as  to  those  two-fifths  had  determined,  and  that  the  power  to 
sell,  which  was  to  be  effective  only  during  the  continu- 
ance *of  the  trusts  reposed  by  the  will  in  the  trustees,  [  *486  ] 
had  ceased.  But  this  was  overruled  upon  appeal  ; 
and  it  was  held  that  the  conveyance  of  William's  share  ought  not 
to  be  made  during  the  infancy  of  the  children,  and  therefore  the 
trusts  were  continuing,  and  the  power  of  sale  was  still  subsisting. 
As  to  Eliza's  share,  the  decree  was  held  valid. (^') 

59.  But  upon  her  share  a  power  by  implication  was  lield  to 
arise  under  her  settlement,  for  that  settlement  dealt  with  the  pro- 
perty as  money  to  arise  by  sale  of  the  estate,  which  it  was  assum- 
ed would  be  made  by  the  trustees,  who  had  the  legal  estate  under 
tlie  will,  and  this  was  held  to  create  a  power  of  sale  in  them  by 
implication. 

60.  In  a  recent  case,  the  estate  for  life  and  reversion  in  fee,  had. 
by  the  failure  of  the  preceding  limitations,  united,  and  the  settlor 
had  devised  the  reversion  in  fee  to  uses  in  strict  settlement. 
There  was  a  power  of  sale  in  the  original  settlement,  which  was 
still  alive.  It  was* contended,  that  the  power  still  existed,  and 
might  be  exercised  so  as  to  defeat  the  uses  created  by  the  will. 
The  Master  of  the  Rolls,  without  determining  whether  the  power 
was  legally  extinct,  held  that  it  could  never  be  intended  to  refer 
to  a  perfectly  new  set  of  limitations  in  a  new  settlement,  at  a  long 
subsequent  period,  under  a  disposition  of  the  estate  made  by  the 
will  of  111 e  owner  of  the  fee. (J) 

61.  We  may  now  consider  how  the  power  is  to  be  exercised. 
We  have  already  seen  that  the  trustees  of  such  a  power  acting  bona 
fide,  will  not  be  controlled  in  equity  in  the  exercise  of  their  dis- 

(/(•)  4  Myl.  8c  Cra.  460.  (0  Wheat*  v.  Hall,  17  Ves.  jun.  80. 

Vol.  11.  37 


434  SUGDEN   ON   POWERS. 

crction  ;  (»i)  and  the  common  power  making  it  lawful  for  them  at 
the  request  and  l)y  the  direction  of  the  tenant  for  life  to  sell  and 
convey,  is  a  discretionary  })Ower  in  them.(w)  We  have  also  seen 
•  that  a  contract  to  sell  the  estate  will  be  enforced  in 
[  *487  ]  equity,  if  it  be  *within  \]\q  terms  of  the  power.  But 
that  if  trustees,  with  a  power  of  sale,  enter  into  a  con- 
tract for  sale  of  the  estate,  which  would  be  decreed  a  breach  of 
trust,  equity  will  restrain  the  trustees  from  performing  the  con- 
tract, (o)  They  may  adoj)t  the  contract  for  sale  of  the  tenant  for 
life,  if  they  tliink  proper,  but  they  cannot  be  compelled  to  do  so.(7>) 
02.  Where  a  power  of  sale  is  given  in  a  settlement  of  real 
estate,  the  object  certainly  is  not  to  turn  the  land  into  money,  so 
as  to  increase  the  income  of  the  tenant  for  life  at  the  expense  of 
the  persons  entitled  to  the  inheritance,  although  every  well-drawn 
settlement  contains  a  clause  expressing,  that  until  a  convenient 
l)urchase  can  be  found,  the  trustees  shall  lay  out  the  money  in  the 
funds  at  interest.  Lord  Eldon,  addressing  himself  to  the  usual 
words  in  powers  of  sale,  that  the  trustees  may  sell  for  such  price  as 
shall  appear  to  them  to  be  reasonable,  observes,  that  that  expres- 
sion must  be  construed,  at  least  in  a  question  between  the  trustees 
and  the  cestuis  que  trvst,  after  they  have  with  due  diligence  ex- 
amined. The  object  of  the  sale  must  be  to  invest  the  money  in 
the  purchase  of  another  estate  to  be  settled  to  the  same  uses  : 
and  they  are  not  to  be  satisfied  ivifh  probability  vjion  that ;  but  it 
ought  to  be  with  reference  to  an  object  at  that  time  supposed  prac- 
ticable, or  at  least  the  Court  would  expect  some  strong  purpose 
of  family  prudence  justifying  the  conversion,  if  it  is  likely  to 
continue  money,  (g.)  (I) 

(??!)  Vide  supra,  vol.  1.  p.  32C. 
(??)  Thomas  v.  Dering,  1  Kce.  720. 

(0)  Supra,  p.  122. 

(p)  Thomas  v.  Dering,  1  Kee.  729. 

(9)  10  Ves.  jun.  809;  Watts  v.  Girdlestone,  6  Beav.  188. 

(1)  In  Lord  Mahon  v.  Earl  Stanhope,  9th  March,  1809,  MS.,  Sir  William  Grant 
said,  that  the  trustee  must  have  a  reaasonable  prospect  of  being  able  to  lay  out  that 
price  in  the  purclr.ise  of  an  estate,  ■which,  from  some  circumstance  or  other,  is  more 
eligible  than  the  estate  proposed  to  be  sold,  for  else  ic  would  be  a  mere  conversion  of 
land  into  money.  This,  he  said,  was  very  clearly  laid  down  by  the  Lord  Chancellor, 
in  the  case  of  Mortlock  v.  Buller,  where  the  power  was  exactly  of  the  same  kind  as 
that  contained  in  the  settlement  before  him  ;  and  he  then  quoted  the  passage  which  is 
inserted  in  the  text. 


TIMBER   TO    BE    SOLD    WITH    THE    ESTATE.  435 

*63.  The  coaclusion  of  the  sentence  shows  that  Lord  [  *488  ] 
Eldon  is  not  to  be  understood  to  mean  that  the  estate 
cannot,  under  any  circumstance,  lie  sold,  unless  the  trustees  have 
another  estate  in  direct  view.  In  the  case  before  him  there  was 
not  the  usual  direction,  that  until  a  convenient  purchase  can  be 
found  the  money  shall  be  laid  out  at  interest.  That  direction, 
where  it  is  inserted,  directly  negatives  such  a  construction  of  the 
power,  and  many  proper  reasons  frequently  occur  to  induce  trus- 
tees to  sell  tlic  estate,  although  they  have  not  an  immediate  pros- 
pect of  purchasing  another  ;  as  an  advantageous  offer,  &c.  And 
certainly  where  a  sound  discretion  has  been  exercised,  equity 
could  not  affect  the  trustees  as  for  a  breach  of  trust. 

64.  In  one  case,  under  a  power  of  sale,  the  parties  sold  the 
estate  for  a  rent-charge  out  of  the  same  estate,  which  was  to  be 
increased  in  value  by  building  on  it.  The  Master  reported  against 
the  title,  and  the  seller  acquiesced  in  the  report  ;(r)  and  although 
a  rent-charge  may  be  held  to  be  an  estate  of  inheritance  in  fee- 
simple,  within  a  covenant  to  settle  such  an  estate, (s)  yet  where  a 
landed  estate  is  settled  with  the  usual  powers  of  sale  and  ex- 
change, it  v/ould  be  contrary  to  the  meaning  of  the  power  to 
substitute  a  mere  rent-charge  for  the  territorial  possession. 

65.  And  where  under  a  power  of  sale  in  a  will  devising  the 
estate  in  strict  settlement,  the  trustee  of  the  power  sold  the  land, 
and  the  tenant  for  life,  whose  consent  to  the  exercise  of  the  power 
was  requisite,  sold  the  timber  on  the  estate,  and  received  the 
price  of  it  on  the  ground  that  he  was  unimpeachable  of  waste, 
and  therefore  might  have  cut  down  the  timber,  it  was  held  that 
the  power  was  not  well  executed,  and  that  equity  could 

not  relieve  the  purchaser. (if)    *And  it  now  appears  that  [  *489  ] 
this  had  been  previously  decided  in  the  case  of  Wolf  v. 
Hill,(w)  and  Doran  v.  Wiltshire  ;(y)  and  it  was  there  said,  there 
was  a  great  difference  between  a  tenant  for  life  cutting  down  tim- 

(r)  Read  v.  Shaw,  Ch.  1807;  Appendix,  No.  28.     See  3  You.  &  Toll.  375. 

(s)  Mid.lleton  v.  Pry:r,  .\mbl.  3'JO,  App.  (I),  Blunt's  ed.;  and  see  Lord  Tanker- 
ville  V.  Coke,  Mose.  14G. 

(0  Cholrneley  v.  Paxton,  3  Bingh.  :207;  and  see  5  Bingli.  48;  3  Russ  565,  and  2 
Moore  &  Payne,  127;  l'>  Barn.  &  Cress.  5G4,  nom.  Cockerell  v.  Cholineley,  1  Russ. 
&  Myl.  418;  1  Clark  &  Fiunelly,  GO.     See  Doe  v.  Phillips,  1  Adol.  &  Ell.  N.  S.  84. 

(u)  2  Swanst.  140  n. 

(»)  3  Swanst.  009. 


430  SUGDEN   ON   POWERS, 

bcr,  for  which  he  is  not  impcachablo  wliilo  lie  actually  occupies 
the  laud,  and  his  executing  a  power  to  sell.  In  the  latter  case 
he  is  not  to  have  the  value  for  Iwmself. 

6Q.  In  delivering  judgment  in  error  in  B.  R.  in  the  case  of 
Cockcrell  and  Cholnicloy,  the  Court  observed,  that  they  did  not 
treat  this  as  a  case  of  fraud,  but  as  a  case  of  failure  of  compliance 
with  that  condition  on  which  alone  the  uses  mentioned  in  the 
testator's  will  could  be  revoked  and  the  estate  be  applied  to  other 
uses.  It  had  been  contended  that  the  revocation  might  be  good 
under  the  power,  although  there  had  not  been  a  good  and  valid 
sale  according  to  the  power.  The  argument  as  to  that  point  was 
founded  jirincipally  on  the  observation,  that  the  old  uses  might  be 
revoked  by  one  deed,  and  the  land  conveyed  and  now  uses  created 
by  another  which  certainly  might  be  according  to  the  language  of 
the  will.  But  looking  at  the  whole  of  the  language  of  the  power 
contained  in  the  testator's  will,  it  appeared  to  be  perfectly  clear 
that  there  could  be  no  valid  revocation  of  the  uses  mentioned  in 
the  will,  unless  that  revocation  was  made  to  the  end  that  a  con- 
veyance might  be  made  of  the  land.  That  must  be  the  object  of 
the  revocation. (.f)  It  must  then  be  seen,  looking  at  the  whole  of 
this  deed,  whether  the  object  of  the  revocation  was  a  conveyance 
of  the  land.  Now  it  appeared  by  the  contract  previous  to  the 
revocation,  and  also  by  the  deed  of  conveyance,  that  the  trustees 
contracted  to  sell  the  land  for  a  certain  specific  sum  of  money ; 
and  the  tenant  for  life,  l)y  the  same  instrument  and  contract,  con- 
tracted to  sell  the  timber,  fruit  and  other  trees,  wood 
[  *490  ]  and  under-wood  growing ;  and  when  the  *contract  was 
executed  by  the  deed  of  revocation  and  conveyance,  the 
trustees  conveyed  the  land  in  consideration  of  one  sum  of  money, 
and  the  tenant  for  life  conveyed  the  timber-trees,  wood  and  under- 
woods, in  consideration  of  another  sum  of  money  paid  to  him.  It 
was  said  that  this  might  be  lawfully  done,  because  the  tenant  for 
life,  without  impeachment  of  waste,  might  at  law  have  cut  down 
all  the  timber-trees  and  underwood.  It  was  not  material  to  con- 
sider whether  he  could  by  law  have  cut  down  trees  to  the  extent 
of  those  which  he  had  sold,  because  their  opinion  was  that  accord- 
ing to  the  terms  of  the  testator's  will,  if  the  tenant  for  life  thought 
fit  to  consent  that  the  estate  should  be  sold,  he  was  bound  to 

(i;  Vide  supra,  p.  475. 


TIMBER   TO   BE   SOLD    WITH   THE   ESTATE.  437 

sufifer  it  to  be  sold  in  the  state  in  which  it  was  at  that  time,  and 
not  to  sever  from  it  the  timber  or  other  trees,  but  let  the  whole 
go  together.  There  would  then  be  one  entire  sum  to  be  received 
for  the  whole,  which  would  be  applied  to  the  interest  of  the 
tenant  for  life  as  to  part,  and  the  person  taking  the  remainder 
after  him  would  be  entitled  to  the  residue.  It  is  said  that  this 
mode  of  dealing  with  the  estate  was  beneficial  for  tlie  family ; 
because,  if  the  tenant  for  life  had  cut  down  the  timber  first,  the 
estate  to  be  sold  afterwards  would  have  fetched  much  less  money. 
That  probably  might  be  so.  But  the  testator  clearly  meant,  if 
the  tenant  for  life  consented  to  the  sale,  he  should  allow  the  estate 
to  be  sold  with  all  that  was  on  it  as  it  then  stood.  This  is  the 
ordinary  sense  and  meaning  of  the  words  "  sale  of  an  estate." 
Though  in  estimating  the  price  the  land  and  timber  are  sometimes 
valued  separately,  yet  the  whole  sum  is  paid  at  once,  and  is  con- 
sidered as  one  price.  That  was  what  the  testator  intended.  His 
intention  not  having  been  complied  with,  the  power  had  not  been 
well  executed,  the  uses  had  not  been  revoked. 

G7.  In  the  case  of  Doran  v.  Wiltshire,  the  tenant  for  life  was 
held  entitled  to  the  money  produced  by  the  sale  of  timber  cut 
before  the  sale  under  the  power,  but  not  to  the  timber  standing, 
although  of  small  value,  and  he  had  built  a  house  worth 
3,000/.  *The  power  of  sale  was  in  the  trustees,  with  [  *491  ] 
the  consent  of  the  husband  and  wife.  In  the  case  in 
the  House  of  Lords  the  power  was  in  the  husband  and  wife,  with 
the  consent  of  the  trustees,  but  that  of  course  does  not  vary  the 
right. 

68.  Where  an  estate  charged  with  incumbrances  descended  to 
three  sisters,  and  each  of  two  of  them  devised  her  one-third  in 
strict  settlement,  with  a  power  in  one  will,  if  at  any  time  before 
the  incuro.brances  should  be  paid  oft"  it  should  be  thought  necessary 
to  sell  and  dispose  of  all  or  any  part  of  her  estates,  to  tlie  trus- 
tees, with  consent  to  sell  all  or  any  part  of  the  estates,  and  a 
power  in  the  other  will  to  the  trustees  to  sell  or  mortgage,  with 
consent,  if  they  thought  it  advisable  to  raise  by  sale  or  mortgage 
of  all  or  any  part  of  her  estates  any  sum  of  money  for  the  pur})ose 
of  paying  oft'  all  or  any  of  the  incumbrances  ;  a  decree  was  made 
for  discharging  the  incumbrances  by  sale  of  the  estate,  or  a  suflfi- 
cient  part  thereof.     The  whole  of  the  estate  was  sold,  and  more 

37* 


438  SUGDEN   ON   POWERS. 

moneys  raised  tliaa  wore  required.  Tiie  Lord  Chancellor,  oi" 
course,  treated  the  decree  as  binding  whilst  it  stood.  But  he 
added,  the  power  given  to  the  trustees  was  to  sell  the  whole  or 
such  part  as  might  bo  expedient. '  The  Court  has  decreed  in  the 
same  way,  and  thg  Master,  with  the  consent  of  the  parties  in- 
terested, has  sold  the  whole.  The  purchaser,  by  whom  the  objec- 
tion was  made,  could  not,  he  held,  come  in  to  object  to  it.(7/) 

69.  In  a  case  which  was  not  discussed,(5r)  a  sale  under  a  power 
oi"  sale  and  exchange  in  a  will  was  made  available  for  the  pay- 
ment out  of  the  purchase-money  of  the  testator's  debts,  which 
were  directed  to  be  raised  by  sale,  lease,  or  mortgage  of  a  1,000 
years'  term,. limited  by  the  will,  and  which  term  would  have  been 
ovprrcjacbed  by  the  execution  of  the  power.     The  estate  was  sold, 

with  an  intention  to  lay  out  the  purchase-money  in 
.[  *492  ]  other  estates,  which  estates  of  *course  would  have  been 

limited  to  the  trustees  of  the  estate  sold  for  1,000  years 
to  pay  the  debts,  and  they  could  only  have  sold  the  term  and  not 
the  inheritance.  But  the  fee  of  the  estate  having  been  sold  un- 
der the  power,  was  in  this  way  made  a  fund  for  the  payment  of 
the  debts.  As  a  reversion,  after  a  term  of  1,000  years,  is  only 
of  a  nominal  value,  no  substantial  injury  is  done  by  such  an  appli- 
cation of  the  price  of  the  fee  ;  but  it  is  not  safe  to  accomplish  in- 
directly by  a  power  what  it  does  not  authorize  to  be  done  di- 
rectly. 

70.  It  was  formerly  a  very  considerable  question,  whether  a 
tenant  for  life,  witli  a  })0wer  of  sale  and  exchange  in  himself,  or 
to  the  execution  of  which  his  consent  was  required,  could  buy  the 
estate  himself,  or  take  it  in  exchange  for  an  estate  of  his  own. 
As  to  an  exchange,  it  was  insisted  that  the  power  meant  an  act 
that  bore  as  near  a  resemblance  to  a  strict  legal  exchange  as  pos- 
sible ;  and  therefore  there  must  be  two  different  persons  to  recip- 
rocally exchange,  which  there  could  not  be  where  the  tenant  for 
life  had  the  power  himself.  And  in  regard  to  the  general  ques- 
tion, it  was  doubted  whether  at  least  equity  would  not  relieve 
against  the  execution  of  the  power.  Of  course,  an  exchange  uur 
der  a  power  cannot  have  all  the  properties  and  ingredients  of 

(y)  Lutwych  v.  Winford,  2  Bro.  C.  C.  248. 
(z)  Fletcher  v.  Hoghton,  5  Ves.  jun.  550. 


SALES  AND   EXCHANGES   BY   TENANT   FOR  LIFE.  439 

legal  exchanges,  nor  is  ii  necessary  it  should,  (a)  But  upon  the 
ground  that  the  word  exchange  in*  the  power  means  an  act  that 
bears  as  near  a  resemblance  to  strict  legal  exchanges  as  possible, 
Mr.  Booth  thought  there  must  be  reciprocal  acts  of  exchange  be- 
tween tv)o  different  persons,  and"  therefore  that  .a  tenant  for  life 
to  whom  a  power  of  exchange  was  given,  under  the  control  of 
others,  could  not  exchange  with  himself.  Sir  D.  Ryder  and  Mr. 
Pilmer  were  of  a  conh'ary  opinion,  and  even  Mr.  Booth  thought 
that  the  exchange  might  be  made  circuitously  under  the  power.(6) 
Lord  Eldon,  although  fully  aware  of  the  danger  attending  a  pur- 
chase of  the  inheritance  by  a  tenant  for  life,  seemed  to 
think  *that  it  could  not  be  impeached  on  general  prin-  [  *493  ] 
ciples.(c)  A  few  years  ago,  however,  the  doubt  was  ' 
stated  as  a  ground  for  requiring  the  aid  of  Parliament,  in  a  peti- 
tion for  an  act  to  enable  an  exchange  of  settled  estates  with  the 
tenant  for  life,  which  it  was  conceived  could  not  be  done  under  a 
power  of  sale  and  exchange  in  the  settlement,  Tlie  Chief  Baron, 
and  Mr.  Baron  Hotliam,  to  whom  the  Ijill  was  referred,  reported, ' 
and  submitted  it  as  their  opinion,  that  the  doubt  which  was  the" 
cause  of  petitioning  for  the  bill  was  not  well  founded  ;  and  there- 
fore that  the  bill  was  unnecessary,  and  that  the  passing  of  such  a 
bill  might  cause  a  great  prejudice  to  numerous  titles  under  exe- 
cutions of  powers  of  sale  and  exchange  of  a  similar  kind  ;  and  the 
House  of  Lords  accordingly  rejected  the  bill ;  in  consequence  of 
which  many  estates  of  great  value  have  since  been  purchased, 
and  taken  in  exchange  by  tenants  for  life,  under  the  usual  powers 
of  sale  and  exchange. 

71.  The  point,  however,  was  again  agitated  in  practice,  but  it 
was  at  last  set  at  rest  by  the  decision  of  Lord  Eldon  in  favor  of 
the  validity  of  the  execution  of  the  power  in  the  late  case  of  How- 
ard v.  Ducane.(<Z)  He  said,  that  the  cases  in  which  he  had  ex- 
pressed his  disapprobation  of  tenants  for  life  having  been  permit- 
ted to  purchase  the  settled  estates  had  been  cases  where  the 
property  had  been  sold  unde;'  the  direction  of  the  Court  ;  when 
a  sale  takes  place  in  the  Master's  office,  the  tenant  for  life  is  thd 

(a)  Sec  1  Madd.  224. 

(6)  2  Cas.  &  Opin.  'J4.     See  Gilb.  Uses,  179,  note. 

(c)  See  9  Ves.  juu.  52;  and  11  Ves.  jun.  480;  but  see  ib.  476,  477. 

(d)  Turn.  &  Russ.  81. 


440         ;  SUGDEN   ON   POWERS. 

only  person  who  knows  anything  about  the  value  of  the  estate, 
and  he  therefore  buys  at  a  great  advantage  ;  but  there  was  a 
diffcrcnee  between  that  case  and  the  present,  for  licre  the  consent 
of  the  tenant  for  life  was  not  all  that  was  necessary  ;  there  must 
be  a  diligent  attention  on  the  part  of  the  trustees  to  see  that  they 
get  a  reasonable  price.  There  might,  undoubtedly,  be  cases  in 
which  more  might  be  obtained  from  the  tenant  for  life  than  from 

any  other  person,  and  if  practice-  had  sanctioned  such 
[  *404  ]  *transactions  as  the  present,  he  would  not  disturb  them. 

He  then  referred  to  the  practice  of  conveyancers,  to 
which  he  thought  great  weight  should  be  given,  but  he  intimated 
that  he  should  have  said  originally  that  it  would  not  do. 

72.  In  the  later  case  of  Grover  v.  IIugell,(e)  the  Master  of 
the  Rolls  was  of  opinion  that  a  purchase  by  a  rector  in  the  name 
of  his  curate  of  land  sold  for  the  redemption  of  land-tax  was  valid 
at  law.  But  he  said  the  rule  in  equity  is  that  a  man  cannot  place 
himself  in  a  situation  in  which  his  interest  conflicts  with  his  duty. 
The  duty  of  the  rector  was  to  obtain  the  best  possible  price  for 
the  land  sold,  and  his  interest  as  purchaser  was  to  pay  the  least 
possible  price  for  it.  The  case  of  Howard  v.  Ducane,  where  it 
was  held  that  trustees  for  sale,  with  the  approbation  of  the  tenant 
for  life,  may  sell  to  the  tenant  for  life,  does  not  furnish  a  general 
principle.  Lord  Eldon  expressly  put  the  case  upon  the  practice 
of  conveyancers,  which  he  did  not  think  it  safe  to  unsettle,  and 
stated  that  he  should  have  said  originally  it  would  not  do.  The 
Master  of  the  Rolls  considered  the  title  bad,  and  rescinded  a 
contract  for  sale  of  the  estate. 

73.  AVe  may  here  again  remark,  that  if  an  estate  be  directed 
to  be  sold,  and  another  estate  to  be  bought  with  the  money,  over 
which  latter  a  power  of  appointment  is  given,  the  power  may  in 
equity  be  exercised  over  the  estate  directed  to  be  sold,  so  as  to 
operate  upon  the  estate  directed  to  be  purchased. (/) 

74.  It  may  here  also  be  proper  to  notice,  that  a  tenant  for  life 
to  whom  a  power  of  sale  is  given,  or  whose  consent  is  requisite  to 
its  execution,  cannot  by  an  exercise  of  his  power  defeat  any  estate 
which  he  has  previously  created  out  of  his  life  estate,  for  he  is  not 

(e)  3  Russ.  428. 

(/)  Bullock  V.  Fladgate,  1  Ves.  &  Bea.  471;  supra,  vol.  1,  p.  513. 


INCUMBRANCES  BY  TENANT  FOR  LIFE.  441 

permitted  to  defeat  his  own  act,(^'')  although  origiuaily  it  might 
with  proi)riety  have  been  held,  that  where  the  interest 
created  was  only  by  way  of  security  for  *money,  it  was  [  *495  } 
defeated  as  to  the  settled  estate,  but  of  course  trans- 
ferred to  the  estate  directed  to  be  purchased.  This  would  have 
been  a  sound  distinction  between  a  general  power  of  revocation  for 
a  man's  own  benefit,  in  which  case  clearly  his  previous  grant 
ought  to  bind  the  estate,  and  a  common  power  of  sale  and  ex- 
change, where  the  money  is  to  be  laid  out  in  another  estate,  to  be 
settled  in  like  manner.  The  rule  of  law  requires  a  purchaser  to 
ascertain  what  incumbrances  the  tenant  for  life  has  created  before 
he  accepts  a  title  under  the  usual  power  of  sale. 

75.  Where  a  lease  has  been  properly  granted  under  a  power  in 
a  settlement,  and  the  estate  is  afterw«,rds  sold  under  a  power  of 
sale  in  the  settlement,  the  purchaser,  as  we  have  seen,  takes  sub- 
ject to  the  lease,  which  is  not  overreached  by  the  subsequent 
exercise  of  the  power  of  selling.  (A) 

76.  And  even  where  a  tenant  for  life  has  created  a  lease  beyond 
the  range  of  his  own  estate,  and  not  warranted  by  any  power  in 
the  settlement,  yet  if  a  purchaser  take  the  estate  under  a  power 
of  rule,  to  tlie  exercise  of  which  the  concurrence  of  the  tenant  for 
life  is  necessary,  and  have  notice  of  the  lease — and  possession  by 
the  tenant  is  notice  of  his  interest — he  will  bebound  by  it,  and  if 
it  rest  ill  fieri  he  will  be  compelled  to  grant  it.(i) 

77.  But  where  a  new  modification  only  is  made  of  the  estate 
subject  to  the  power  of  sale  in  the  settlement,  that  power  may  be 
executed,  notwithstanding  the  new  settlement,  and  so  as  to  over- 
reach the  uses  of  both  the  settlements.  In  the  case  of  Roper  v. 
Halifax  (^)  there  was  a  settlement,  with  a  power  of  sale 

to  trustees,  with  the  consent  of  the  *tenant  for  life.     A  [  '49G  ] 
recovery  was  suflercd,  in  whicli  the  tenant  in  tail  only 
was  vouched,  which  was  to  enure,  to  confirm  the  estates  previous 
to  the  estate-tail,  and  the  powers  annexed  to  them,  and  subject 

(;,■■)  Goo'lright  V.  Cator,  Doiigl    4C0. 

{h)  Viile  supra,  vol.  1,  p.  45. 

(i)  Tiiylor  v.  Stibbert,  2  Ves.  jun.;  supra,  p.  367. 

(/t)  C.  B.  T.  &  M.  Terms  1810.  MS.  Appendix,  No.  3,  for  a  sketch  of  :in  iirgu- 
ment  written  by  the  Author  in  favour  of  the  destruction  of  the  power.  The  case  being 
now  reported  in  8  Taunt.  8i5,  the  report  in  the  Appendix  in  former  editions  has  been 
omitted. 


442 


SUGDEN   ON    POWERS. 


thereto,  to  the  joint  a{){)ointmeiit  of  the  father,  tenant  for  life,  and 
son,  tenant  in  tail  under  tlie  settlement.  The  deed  making  the 
temuit  to  the  preeipe  eontained  the  100,000/.  clause,  as  it  in 
called  ;  and  the  estate  was  vested  in  tlie  tenant  to  the  precipe  for 
the  joint  lives  of  him  and  the  tenant  for  life  only.  The  father 
and  son  made  a  joint  appointment  (subject  to  the  aforesaid  estates 
and-  powers,)  to  new  uses ;  and  the  trustees,  and  the  father  and 
sou,'  conveyed  (subject  as  aforesaid)  to  new  uses,  recapitulating 
the  old  ones  previously  to  the  estate-tail,  and  new  powers  of] 
sale,  <S:c.  were  given.  It  was  held,  that  the  power  of  sale  under 
the  original  settlement  was  not  destroyed  by  the  recovery  or  by 
the  new  settlement. 

78.  We  may  in  this  place  observe  that  purchasers  under  such 
a  power  are  entitled  to  relief  in  equity  against  any  defect  in  the 
execution  of  it,  unless,  as  in  the  case  of  Reid  v.  Shergold,  the 
substance  of  the  power  is  not  pursued,  or  the  execution  was 
fraudulently  obtained,  as  in  Doe  v.  Martin. (/) 

79.  We  have  had  occasion  to  notice  the  operation  of  a  proviso, 
authorizing  the  owners  to  receive  the  rents  till  sale  of  an  estate 
conveyed  to  trustees  to  sell.(w)  In  a  very  recent  case,(w)  a 
man  surrendered  a  copyhold  to  a  trustee  in  fee,  upon  the  trusts 
declared  by  a  certain  deed  for  securing  200/.  and  interest.  By  a 
deed  between  the  parties,  it  was  declared  that  the  trustee  should 
be  seised  of  the  estate  upon  trust  to  re-surrender,  if  the  money 
and  interest  should  be  paid  at  a  day  named ;  but  if  default  should 
be  made  in  payment,  tlicn  upon  trust  at  any  time  thereafter,  when 
the  lender,  his  executors,  administrators,  or  assigns,  should  think 

proper,  to  sell  the  estate,  &c.;  and  the  surrenderor 
[  *497  ]  *covcnanted  that  tlie  estate  should  be  to  the  use  of  the 

trustee  in  fee  upon  the  trusts,  &c.  before  declared,  and 
for  quiet  enjoyment,  free  from  incumbrances.  Default  having 
been  made  in  payment  of  the  money,  the  trustee,  without  having, 
been  admitted,  entered ;  and  in  trespass  quare  clausum  /regit., 
the  special  matter  was  pleaded  by  the  defendants,  and  the  })laintiff 
demurred  specially.  The  plea  stated  an  entry  by  virtue  of  the 
indenture,  but  not  that  the  entry  was  for  the  purpose  of  selling, 

(/)  Vide  supra,  ch.  10. 

(m)  iSupni,  vol.  1,  p.  153. 

(«)   Watsou  V.  Walth-im,  2  k<\o\.  &  Ell.  485. 


INCUMBRANCES  BY  TENANT  FOR  LIFE.  443 

or  for  any  specified  purpose.  The  question,  it  was  said,  was, 
■whether  the  covenant  for  quiet  enjoyment  operated  merely  to 
warrant  the  title  of  the  trustee  as  such,  or  of  itself,  that  is  inde- 
pendently of  the  estate  of  the  trustee,  gave  him  a  power  to  do  the 
particular  act.  The  Chief  Justice  observed,  that  the  plea  did  not 
state  that  the  entry  in  (|ucstion  was  made  for  the  pur[)osc  of  sell- 
ing, nor  was  it  necessary  for  that  purpose  that  an  entry  should  be 
made.  At  all  events  the  power  given  was  only  to  sell  when  the 
lender  should  think  proper,  and  it  was  not  averred  that  he  did  so. 
Till  that  happened,  the  case  in  which  the  power  was  to  be  exe- 
cuted did  not  arise.  He  at  first  thought  that  the  covenant  for 
quiet  enjoyment  might  be  looked  at  as  unconnected  with  the  rest 
of  the  deed,  but  that  covenant  is  expressly  stated  to  be  upon  and 
for  the  trusts,  intents  and  purposes  before  declared.  The  other 
Judges  appear  to  have  thought  that  the  trustee  might  have  entered 
if  he  had  been  admitted,  and  that  although  there  had  been  no  admit- 
tance, the  power  contained  in  the  deed  and  the  covenant  for  quiet 
enjoyment  would  liave  been  a  sufficient  defence  but  for  the  quali- 
fication introduced  as  to  the  lender.  His  thinking  proper  to  have 
the  estate  sold  was  a  condition  precedent :  had  it  not  been  for 
that  limitation,  the  trustee,  who  had  a  quasi  legal  estate,  might 
have  sold,  and  might  have  justified  entering,  that  he  might  more 
conveniently  hold  and  enjoy  the  premises  for  the  purpose  of  the 
deed.  But  that  was  prevented  by  the  condition  ;  and  therefore, 
as  the  plea  did  not  show  that  the  lender  thought  proper 
*to  require  a  sale,  the  power  did  not  appear  to  have  [  *498  ] 
been  followed  so  as  to  allbrd  a  justification  of  the  tres- 
pass. But  an  application  to  amend,  by  putting  on  the  record  a 
request  by  the  lender,  was  refused.  Tlie  Lord  C.  J.  said  he  could 
not  assent  to  that.  One  of  his  grounds  of  decision  was,  that  the 
power  to  sell  did  not  imply  a  right  to  enter  and  turn  persons  out. 
An  entry  might  be  made,  and  no  purchaser  ever  found.  The 
Court  therefore  did  not  agree  in  opinion. 

80.  This  is  a  case  which  frequently  occurs  in  practice,  and  it  is 
highly  desirable  that  the  true  rule  should  ])e  fixed.  It  admits  of 
no  doubt,  that  if  the  trustee  had  been  admitted,  he  might  have 
entered  and  turned  out  the  occupants,  although  no  purchaser 
might  ever  be  found  ;  for  the  legal  estate  would  carry  the  right, 
and  possession  is  necessary  before  an  attempt  to  sell,  with  the 


444  SUDGEN  ON  POWERS. 

view  as  well  to  the  preparation  for  a  sale,  as  to  the  ability  of  giv- 
ing quiet  possession  to  a  ])urchascr  after  a  sale  ;  and  if  in  such  a 
case  no  sale  can  be  eifected,  clearly  the  rents  and  profits,  that  is 
the  estate,  must  answer  the  money  secured,  without  a  sale.  And 
the  covenants  go  Avith  tlic  estate,  and  the  borrower,  if  the  trusts 
are  not  duly  perfoi*med,  must  seek  his  remedy  in  a  court  of  equity. 
The  opinion  of  the  L.  C.  J.  would  appear  to  deny  to  the  trustee, 
even  after  admittance,  a  right  to  enter  before  a  sale;  but  probably 
that  is  not  the  meaning  of  his  concluding  observation,  although 
the  words  arc,  that  the  power  to  sell  did  not  imply  a  right  to 
enter  and  turn  persons  out ;  an  entry  might  be  made,  and  no  pur- 
chaser ever  found.  The  ol)scrvation  is  not,  that  the  covenant, 
before  admittance,  did  not  warrant  an  entry :  of  course  the  opera- 
tion of  the  power  or  trust  to  sell  was  not  varied  by  the  want  of  an 
admittance,  although  an  admittance  would  be  necessary  to  the 
completion  of  a  sale. 

81.  As  regards  the  necessity  of  an  admittance  to  justify  an 
entry  in  such  a  case,  the  surrender  gives  a  title,  except  as  against 
the  lord,  although  the  possession  remains  with  the  sur- 
[  *499  ]  renderor  ;  *but  the  covenant  that  the  estate  should  for- 
ever thereafter  remain  to  the  trustee  in  fee  upon  the 
trusts,  and  should  be  peaceably  held  and  enjoyed,  and  the  rents 
received  accordingly,  without  any  interruption  by  the  surrenderor, 
might  well  be  considered  as  including  a  license  to  the  surrenderee 
to  enter,  (o)  If  this  be- the  true  view,  the  entry  authorized  ought 
perhaps  to  be  deemed  that  which  the  estate  warranted,  and  to 
which  the  continuing  operation  of  the  covenants  would  attach  ; 
and  if  so,  the  entry  in  the  above  case  might  have  been  justified 
upon  the  plea  as  it  stood,  for  tlie  trustee  for  this  purpose  would 
have  the  same  right  as  if  he  had  been  admitted.  The  requisition 
of  the  cestui  que  trust,  the  lender,  was  properly  a  question  belong- 
ing to  another  jurisdiction.  The  covenants  embraced  the  posses- 
sion and  the  fee  from  the  execution  of  the  deed ;  the  trusts  were 
to  spring  out  of  the  interest  thus  secured  to  the  trustee.  They 
bound  the  trustee  as  trusts,  but  ought  not,  it  should  seem,  to  be 
held  to  operate  as  conditions  qualifying  at  law  the  covenants  of 
the  surrenderor. 

(o)  See  Holdfast  v.  Chapham,  1  Term  Rep.  600. 


POWERS  TO   APPOINT   NEW   TRUSTEES. 


445 


*  CHAPTER  XIX. 


[  *500  ] 


OF     POWERS   TO    APPOINT    NEW   TRUSTEES. 


•  2.  Where  the  power  is  authorized   by 
articles. 
3.  How  the  power  should  be  exercised  in 
form . 

6.  Where   the    power  contrary    to   the 

words,  subsists   after  the  death  of 
all  the  trustees. 

7.  A  continuing  trustee  within  a  power 

to  the  survivor. 

8.  Where  the  power  distinguishes  sets 

of  trustees  in  classes. 

10.  What  number  of  trustees  may  be  ap- 

pointed. 

11.  B  inkruptcy  an  unfitness  to  act. 

12.  AVhere  a  new  trustee  should  be    ap- 

pointed before  the  estate  is  sold. 


13.  Where   the    trustee's  discretion   con- 

trolled by  equity. 

14.  Upon  a   bill  filed,   there  will  be  in- 

quiry. 

15.  Effect  of     appointment   by    trustee? 

after  suit. 

16.  Provisions    where    trustee   is    luna- 

tic, &c. 

17.  Where  equity  will  appoint  trustee. 

18.  Where  under  1  Will.  4,  c.  60,  s.  22. 
lU.  Costs  of  trustees  retiring. 

20.  )      Appointment  of  trustees  for  chari  - 

21.  5  ties. 

22.  Reference  to  Master. 


1.  The  last  power  in  settlements  is  usually  that  to  appoint  new 
trustees.  This  power  generally  expresses  plainly  the  cases  in 
which  a  new  trustee  is  to  be  appointed,  and  it  is  seldom  any  dif- 
ficulty arises  either  upon  its  construction  or  its  execution. 

2.  In  Lindow  v.  Fleetwood, (a)  where  a  strict  settlement  was 
directed  by  a  will,  and  that  there  should  be  inserted  in  it  powers 
of  leasing,  sale,  partition,  and  exchange,  and  that  in  such  settle- 
ment should  be  inserted  "  all  suCh  other  proper  and  answerable 
powers  as  are  usually  inserted  in  settlements  of  the  like  nature," 
a  power  to  appoint  new  trustees  was  held  to  be  a  proper  and  rea- 
sonable  power.      Some  reliance   w^as   placed  by  the 

Court  upon  the  direction  being  *in  a  separate  and  dis-  [  *501  J 
tinct  sentence  ;  but  that  appears  to  be  too  slight  a  dis- 
tinction. 

3.  All  old  power  of  appointing  new  trustees  of  real  estate 
merely  express  that  the  trustees  may  convey  to  new  trustees,  and 
do  not  give  express  powers  of  revocation  and  new  appointment.. 


Vol.  II. 


(a)  6  Sim.  152. 
38 


446  SUGDEN   ON   POWERS. 

Sometimes  the  trustees  are  made  merely  to  "  appoint  an(iconvey" 
the  lands  to  the  uses  ;  or  tlie  like  :  the  words  of  the  power  being 
followed  with  the  addition  of  the  word  appoint ;  and  sometimes 
they  arc  made  to  expressly  revoke  the  uses  of  the  settlement, 
and  then  to  appoint  to  the  new  uses.  Either  mode  will  eflectuate 
the  intention. 

4.  The  power  of  appointing  new  trustees  now  usually  inserted 
in  settlements,  directs,  that  upon  the  appointment  of  a  new  trustee 
all  such  conveyances,  &c.  shall  be  executed  as  will  effectually  vest 
the  estates  in  the  old  and  new  trustees  to  the  uses  of  the  settle- 
ment ;  and  declares,  that  every  new  trustee  when  appointed  shall 
have  the  same  powers,  &c.  as  if  nominated  in  the  deeds.  Now, 
it  seems  quite  clear,  that  no  more  was  originally  intended  by  this 
power  than  that  the  trustees  to  preserve  contingent  remainders 
should  transfer  the  estate  limited  to  them  for  that  purpose  (which 
is  a  vestcd(&)  remainder,)  or  any  other  estate  actually  vested  in 
them,  to  the  trustees,  who  would  be  enabled  to  exercise  the  dif- 
ferent powers  of  sale  and  exchange,  &c.  created  by  the  settlement, 
under  the  express  direction  contained  in  the  deed,  that  every  new 
trustee  should  have  the  same  powers  as  the  old  trustee  had.  But 
it  has  become  usual  to  consider  it  essential  that  the  new  trustees 
should  have  a  seisin  to  serve  the  uses  in  the  same  manner  as  the 
old  trustees  had,  although  it  does  not  always  happen  that  the 
trustees  of  the  powers  are  the  persons  seised  to  the  uses,  nor  is  it 
at  all  necessary  that  they  should  be.  To  raise  this  new  seisin 
two  deeds  are  necessary  ;  by  the  first,  the  uses  of  the  settlement 

must  be  revoked,  and  the  cetate  appointed  to  a  stran- 
[  *o02  ]  ger  in  *fee,  and  the  old  trustees  must  join  in  conveying 

the  estate  to  him,  and  tiicn  the  stranger  must  re-con- 
vey (which  he  may  do  by  indorsement)  to  the  uses  of  the  settle- 
ment, in  the  same  manner  as  if  the  new  trustee's  name  had  been 
inserted  therein.  The  power  of  revocation  and  new  appointment 
is  considered  to  be  clearly  implied  by  the  declaration  in  the  power, 
and  supposing  no  such  power  to  exist,  yet  the  estates  to  preserve 
contingent  remainders  are  effectually  vested  in  the  old  and  new 
trustees  by  the  actual  conveyance.  This  mode  assumes  that 
there  is  a  seisin  in  the  releasees  to  serve  the  uses,  and  that  that 

(6)  See  Dormer  v.  Fortescue,  Willes,  327. 


POWERS  TO  APPOINT  NEW  TRUSTEES.  447 

seisin  is  transferable,  for  otherwise  it  would  not  be  necessary  to 
defeat  the  old  uses,  and  raise  a  new  seisin  in  the  old  and  new 
trustees  to  serve  them.  If  it  ever  should  become  necessary  to  de- 
cide the  point,  there  is  little  doubt  but  that  it  will  be  determined, 
1.  That  the  power  only  meant  that  the  estate  actually  vested  in 
the  trustees  shall  be  transferred  to  the  old  and  new  trustees, 
whicli  may  be  done  by  one  deed  operating  under  the  statute  of 
uses  :  2.  That  they  may  then  exercise  the  powers  created  by  the 
settlement:  and,  consequently,  3.  That  there  is  no  seisin  in  the 
trustee  to  transfer,  and  therefore  the  revocation  and  appointment 
is  nugatory  and  of  no  effect.  Of  course  these  observations  do  not 
apply  to  a  case  where  the  fee-simple  is  vested  in  the  trustees.  In 
that  case,  clearly,  one  conveyance  only  is  necessary.  The  old 
trustees  may  convey  by  lease  and  release  to  the  new  trustee,  to 
the  use  of  himself  and  the  old  trustees  in  fee,  upon  the  trusts. 

5.  Admitting  that  the  usual  power  of  appointment  requires  the 
seisin  (if  there  be  any)  in  the  old  trustees,  to  be  vested  in  the 
new  trustees,  it  will  not  be  denied  by  the  most  strenuous  support- 
ers of  this  doctrine,  that  this  ceremony  is  not  necessary  where  the 
power  expressly  negatives  that  construction  :  the  powers  in  the 
settlement,  it  is  quite  clear,  may  be  executed  by  a  person  not 
having  any  seisin  vested  in  him  to  serve  the  uses ;  therefore,  to 
prevent  the  necessity  of  this  artificial,  circuitous  mode 

of  appointing  new  trustees,  *it  may  be  advisable  to  ex-  [  *503  ] 
pressly  declare  in  the  deed  creating  the  power,  that 
upon  the  appointment  of  any  new  trustee  the  estate  of  the  trus- 
tees to  preserve  contingent  remainders  shall  be  conveyed  to  the 
continuing  and  new  trustees ;  and  that  every  new  trustee  may 
act  in  the  execution  of  the  powers,  without  being  invested  with 
the  seisin  (if  any)  in  the  old  trustees  to  serve  the  contingent  or 
future  uses.  The  usual  power  of  revocation  and  new  appoint, 
mcnt  introduced  into  this  power  of  appointing  new  trustees  is, 
however,  to  be  preferred,  as  its  operation  isnow  generally  known  : 
a  circumstance  which  is  in  practice  of  infinitely  greater  impor- 
tance than  the  expense  of  an  additional  deed. 

6.  In  the  late  case  of  Morris  v.  Preston, (c)  it  appeared  that 

(c)  7  Ves.  jun.  547.  See  White  v.  Parker,  1  Bing.  N.  C.  573;  1  Scott,  542,  where 
jhe  legal  estate  passed.     In  re  Roche,  2  Dru.  k  War.  287. 


448  SUGDEN   ON   POWERS. 


1 


in  a  settlement  powers  of  sale  and  exchange  were  given  to  the 
trustees  to  preserve  contingent  remainders.  And  there  was  a 
power,  in  case  of  the  death  of  any  or  cither  of  tlic  trustees,  for 
the  husband  or  wife,  or  the  survivor,  iviUi  the  consent  of  the  sur- 
viving co-trustee  or  co-trustees,  to  appoint  any  new  trustee  or 
trustees,  and  upon  such  appointment  the  surviving'  co-trustee 
should  convey  the  estate,  so  that  the  surviving  trustee  and  trus- 
tees, and  the  new  trustee  or  trustees,  might  be  jointly  concerned 
in  the  trusts,  in  the  same  manner  as  such  surviving  trustee  and 
the  person  so  dying  would  have  been  in  case  he  were  living. 
The  purchaser  objected  to  the  title  of  the  trustees  under  the 
power  of  sale,  because  they  were  not  appointed  until  the  death  of 
both  the  trustees  under  the  original  settlement,  which  was  not 
authorized  by  the  power,  but  the  objection  was  waived  without 
argument.  Now  the  power  in  terms  clearly  did  not  extend  to 
the  event  which  happened  :  it  contemplated  only  an  appointment 
on  the  death  of  one  trustee,  and  not  an  a])pointmcnt  after  the 
death  of  both;  but  the  ground  on  which  the  plaintiff's  counsel 
waived  the  objection  must  be,  that  the  intention  of  the 
[  *504  ]  power  was,  that  new  trustees  should  *be  appointed 
whenever  circumstances  might  require  it.  Clear  as  this 
point  appears  to  be,  it  is  to  be  regretted  that  the  opinion  of  the 
Court  was  not  taken  upon  it.  It  has  more  than  once  happened, 
that  what  counsel  have  given  up  in  argument  the  Court  has  en- 
forced, 

7.  A  power  in  a  will,  in  case  either  of  two  trustees  should  de- 
cline to  act  to  the  survivor  of  the  trustees,  to  appoint  new  trus- 
tees, authorizes  the  continuing  trustee  to  appoint  new  ones  ;  but 
if  both  refuse  to  accept  the  trust,  they  cannot  exercise  the 
power.  ((^^) 

8.-  Wlicre  three  different  classes  of  trustees  were  appointed  by 
will  for  three  different  purposes,  first,  R.  Sharp,  and  R.  L.  Rice, 
as  to  1,000/. ;  then  as  to  the  rest  of  the  personal  estate,  Mary 
Sharp,  R.  Sharp,  and  G.  A.  Davis ;  and  then  as  to  the  real  es- 
tate, R.  Sharp  and  G.  A.  Davis ;  and  the  will  then  contained  a 
power,  that  in  case  either  of  the  testator's  said  trustees,  R.  Sharp 
and  R.  L.  Rice,  so  far  as  applied  to  the  trusts  reposed  in  them 

(rf)  Sharp  V.  Sharp,  2  Barn.  &  Aid.  405. 


POWERS   TO    APPOINT    NEW   TRUSTEES.  449 

respectively,  or  the  said  Mary  Sharp,  R.  Sharp,  and  G.  A.  Davis, 
SO  far  as  applied  to  the  trust  reposed  in  them  respectively  as 
aforesaid,  should  happen  to  die,  or  desire  to  be  discharged  from, 
or  neglect  or  refuse,  or  become  incapable,  to  act  in  the  trusts 
thereby  in  them  reposed,  before  such  trusts  should  be  fully  per- 
formed or  determined,  in  such  case  it  should  be  lawful  for  new 
trustees  to  be  appointed :  It  was  held  that  these  words  plainly 
denoted  that  the  two  first  trustees  were  to  be  distinguished  as  a 
separate  class,  and  the  second  sentence,  which  applies  to  the 
other  three,  had  the  same  confined  meaning  ;  the  whole  power, 
therefore,  was  given  to  the  porsons  named  in  classes,  and  no 
power  at  all  was  given  to  the  third  class,  who  were  not  named. (e) 

9.  Where  a  daughter  was  entitled  to  a  sum,  secured  upon  her 
father's  estate,  and  by  her  marriage  articles  for  a  set- 
tlement, *it  was  agreed  that  there  should  be  in  the  set-  [  *o05  ] 
tlement  a  power  enabling  the  father,  his  executors  or 
administrators,  to  invest  the  money  in  the  usual  securities,  in  the 
names  of  trustees  to  be  for  that  purpose  appointed^  and  for  the 
trustees  from  time  to  time,  with  the  consent  of  the  husband  and 
wife,  or  the  survivor  of  them,  or  of  their  own  authority,  to  change 
the  securities,  and  the  income  was  to  be  paid  to  the  husband  for 
life,  and  then  to  the  wife  for  her  separate  use  for  life,  and  then 
the  principal  to  the  children  ;  it  was  held  that  the  wife,  after  the 
death  of  her  husband,  could  not  appoint  trustees.  It  was  con- 
sidered that  the  trustees  in  the  first  instance,  ought  to  have  been 
appointed  by  the  husband  and  wife  jointly,  and  the  clause  as  to 
the  consent  of  the  husband  and  wife,  or  the  survivor,  being  after 
the  payment^  was  treated  as  excluding  such  a  power  before  that 
event.  (/)  It  may,  however,  be  thought  that  that  clause  afi"orded 
a  solution  of  the  difficulty  by  whom  the  trustees  were  to  be  ap- 
pointed, in  respect  of  which  the  deed  was  silent ;  and  this  was 
further  pointed  out  by  the  trusts  themselves,  which  gave  the  inte- 
rest of  the  fund  to  the  survivor  for  life.  It  was  considered  ttia,t 
the  father's  concurrence  in  the  appointment  was  not  necessary. 

10.  And  although  in  words  the  trustee  is  only  to  appoint  some 
other  person  to  succeed  him,  yet  it  is  said  he  may  appoint  more 

(c)  Sharp  v.  Sharp,  2  Barn.  &  Aid.   405;  and  see   Smith  v.  Leigh,  6  Moore,  214. 
(/ )  Brasier  v.  Hudson,  9  Sim.  11. 

38' 


4.';0  SUGDEN   ON   POWERS. 

Ihan   onc.(i>-)     But  it  has  been  held,  that  a  greater  than  the 
original  number  of  trustees  is  invalid. (/t) 

11.  If  the  power  is  to  appoint  a  new  trustee  in  case  any  of  the 
trustees  should  become  incapable  or  unfit  to  act  in  the  trusts,  the 
bankruptcy  of  a  trustee  would  be  an  unfitness,  (i) 

12.  We  have  already  seen  in  what  cases  the  assignee  or  real 
or  personal  representatives  of  a  trustee  or  a  power  will  have  the 
discretion  which  was  reposed  in  the  trustee  himsclf,(/c)  and  like- 
wise in  what  case  surviving  trustees  cannot  execute  a 

[  *506  ]  *power  without  the  concurrence  of  the  heir  of  the  de- 
ceased trustee. (/}  The  latter  cases  bear  upon  the  doc- 
trine which  we  discussed  in  the  last  chapter,  inasmuch  as  they 
point  out  the  necessity  of  appointing,  under  the  power  in  the 
settlement,  a  new  trustee  in  the  room  of  the  deceased  trustee, 
■before  any  attempt  is  made  to  exercise  the  power  of  sale  and 
exchange.  The  power  would  be  badly  executed  if  the  surviving 
trustees  acted  alone :  and  after  what  fell  from  Lord  Eldon,  in 
Hall  V.  Dewes,  a  good  title  might  not  be  made,  if  even  the  heir 
of  the  deceased  trustee  concurred  with  the  surviving  trustees. 

13.  The  discretion  of  a  trustee  of  a  power,  as  we  have  seen, 
is  not  restrained  by  equity,  where  he  is  acting  bona  fide.  But 
although  a  trustee  have  the  fullest  power  to  nominate  a  new  trus- 
tee, who  is  to  be  highly  remunerated,  yet  upon  a  bill  filed  equity 
will  control  the  act.  His  power  to  appoint  a  trustee  does  not, 
Lord  Eldon  said,  at  all  aflect  the  control  of  the  Court  over  his 
discretion,  though  it  imposes  upon  the  Court  a  duty  more  espe- 
cially to  take  care  that  its  own  discretion  is  wisely  exercised ;  for 
when  such  a  remuneration  is  given  to  the  new  trustee,  no  one 
motive  ought  to  operate  upon  the  old  trustee  in  the  appointment 
but  to  do  the  very  best  thing,  not  for  himself,  or  the  person  whom 
he  is  to  appoint,  but  for  those  whose  interests  they  are  to  take 
care  of.  There  is  no  doubt,  therefore,  of  the  control  of  the  Court 
over  his  discretion.  It  does  not  prevent  the  exercise  of  his  dis- 
cretion, but  takes  care  that  it  shall  be  duly  exercised.     In  the 

{g)  Sands  v.  Nugee,  8  Sim.  130. 

{h)  Ex  parte  Davis,  2  You.  &  Coll.  C.  C.  468. 

(i)  In  re  Roche,  2  Dru.  &  War.  287. 

{k)  Supra,  vol.  1,  p.  147. 

(0  Supra,  vol.  1,  p.  142. 


TRUSTEES   OP   POWER   CONTROLLED.  451 

ordinary  cases,  trustees,  parties  to  the  suit,  will  not  be  allowed  to 
change  the  trustees  without  the  authority  of  the  Court.  (?h) 

14.  And  although  trustees  with  such  a  power  may  appoint 
whom  they  think  proper,  yet  if  they  will  not  do  so  without  going 
into  a  court  of  equity,  the  Court  will  not  appoint  a  person  upon 
their  nomination  without  a  previous  inquiry. (w) 

*15.  If  after  a  bill  filed  to  have  new  trustees  appoint-  [  *507  ] 
ed,  the  old  trustees  appoint  new  ones  of  their  own 
authority,  the  act  is  not  altogether  void,  but  it  puts  the  burden 
upon  them  of  proving,  and  that  by  the  strictest  evidence,  that 
what  they  have  done  was  perfectly  right  and  proper,  and  also 
imposes  upon  them  the  necessity  of  paying  the  costs  of  such  proof. 
If  the  appointment  is  not  in  the  view  of  the  Court  perfectly  right 
and  proper,  it  will  be  set  aside,  and  the  trustees  may  be  fixed 
with  the  costs  occasioned  by  their  act.(o) 

16.  Where  there  is  a  power  to  appoint  new  trustees,  but  the 
old  trustee  is  a  lunatic,  although  there  is  no  inquisition,  or  an 
infant,  or  abroad,  &c.,  the  courts  of  equity  have  power  under  an 
act  of  parliament  to  obtain  in  a  summary  way  conveyances  and 
transfers  of  the  trust  property  to  new  trustees  to  be  appointed 
under  the  power. (/?) 

17.  Where  the  settlement  contains  no  power  to  appoint  new 
trustees,  equity  will  by  force  of  its  jurisdiction  in  a  regular  suit 
appoint  trustees  in  proper  cases  ;  but  tlie  Court  has  no  power  to 
delegate  its  power,  and  therefore  such  trustees  cannot  be  author- 
ized by  the  deed  to  appoint  others  in  their  stead.  Upon  every 
occasion  equity  alone  can  fill  up  the  appointment. (7)  But  where 
a  will  did  contain  a  power  to  appoint  new  trustees,  but  it  became 
inoperative  by  lapse,  the  Court  in  appointing  new  trustees  author- 
ized them  to  renew  the  trustees  as  if  the  power  in  the  will  con- 
tinued, (r) 

(m)  Webb  v.  Lord  Shaftesbury,  7  Ves.  jun.  180.  See  Millard  v.  Eyre,  2  Ves.  jun. 
94 ;  Cafe  v.  Bent,  3  Hare,  245. 

(n)  V.  Robarts,  1  Jac.  &  "Walk.  251. 

(o)  Attorney-general  v.  Clack,  1  Beav.  467. 

(p)  1  Will.  4,  c.  60.     See  s.  11.     In  re  John  Welch,  3  Myl.  &  Cra.  292. 

{q)  Bayley  v.  Mansell,  4  Madd.  22G;  Southwell  y.  Ward,  1  Tamlyn,  314;  Joyce 
y.  Joyce,  2  Moll.  276,  where  the  power  was  by  inadvertence  introduced;  Brown  v. 
Brown,  3  You.  &  Coll.  395.     See  Sampayo  v.  Gould,  12  Sim.  426. 

(r)  Howard  v.  Rhodes,  1  Kee.  581.    See  Greenwood  v.  Wakeford,  1  Beav.  676. 


452  6UGDEN    ON    POWERS. 

18.  Where  there  is  such  a  disability  in  a  trustee  as  enables  an 
application  to  a  court  of  equity  to  compel  a  conveyance,  or  trans- 
fer, although  there  is  no  power  in  the  instrument  creating  the 

trust  to  appoint  new  trustees,  yet  the  Court,  where  the 
[  *508  ].  recent  creation  or  declaration  of  the  trust,  or  other  *cir- 

cumstanccs,  may  rendor  it  safe  and  expedient,  is  cm- 
powered  in  a  summary  way  to  cause  a  transfer  or  conveyance  to 
be  made  to  now  trustees. (5)  This  provision  renders  a  suit  un- 
necessary', even  where  there  is  no  power  in  the  instrument  to 
appoint  new  trustees.  But  it  is  a  discretion  exercised  with  a 
great  caution. (0  The  power  clearly  extends  to  a  case  where  the 
trustee  is  out  of  thxi  jurisdiction,  although  it  has  been  supposed,(M) 
but  erroneously,  that  the  Judge  who  decided  Fitzgerald's  case 
intended  to  express  a  contrary  opinion. (a:) 

19.  If  a  trustee,  without  a  sufficient  cause,  retire  from  a  trust 
which  he  has  accepted,  the  Court  will  not  allow  him  any  costs  ;(y) 
indeed,  the  general  opinion  was  that  he  would  be  compelled  to 
pay  the  costs  of  the  proceedings. 

20.  In  cases  of  charity,  a  power  of  appointing  new  trustees 
receives  a  liberal  interpretation  •,(^z')  and  if  there  be  no  such 
power,  equity  of  course  will  appoint  new  ones,  and  upon  a  proper 
scheme  can  authorize  regular  appointments  to  be  made  by  proper 
parties,  as  "occasion  may  require. 

21.  In  consequence  of  the  great  expense  to  charities,  where  all 
the  trustees  of  property  were  dead,  in  making  out  the  title  of  the 
heir  to  the  surviving  trustee,  the  1  W.  4,  c.  60,  s.  23,  provided 
that  where  all  the  trustees  of  any  estate  for  any  charity,  or  chari- 
table or  public  purpose,  should  be  dead,  the  Court  might  in  a 
summary  way  require,  by  advertisement,  that  the  representative 
of  the  last  surviving  trustee  do,  within  twenty-eight  days,  appear 
or  give  notice  of  his  title  to  the  trustee,  and  prove  his  pedigree, 

(s)  1  W.  4,  c.  60,  8.  22. 

(()  In  re  Nicholls,  Lloy.  &  Goo.  t.  Sugd.  17;  lu  re  Fitzgerald,  ib.  20. 

(u)  lu  re  Lord  Mayo,  Lloy.  &  Goo.  t.  Plunket,  118. 

(i)  See  in  re  Cloyne;  the  very  order  was  made  by  the  same  Judge. 

(y)  Wliite  V.  White,  5  Beav.  221. 

(z)  Attorney-general  v.  Pearson,  3  Mer.  412,  413.  See  Attorney-general  v.  Floyer, 
2  Vern.  748;  Doe  v.  Roe,  1  Anstr.  86;  Foley  v.  Wontner,  2  Jac.  &  Walk.  248;  Attor- 
ney-general y.  Shore,  Ch.  1834,  1835,  1836;  Attorney-general  v.  Scott,  1  Ves.  413} 
Attorney-general  v.  Bishop  of  Litchfield,  5  Ves.  jun.  825. 


..       CHARITY   TRUSTEES.  -453 

or  other  title  as  trustee ;  *and  in  default,  the  Court  is  [  *509  ] 
authorized  to  appoint  new  trustees,  and  to  cause  a  con- 
veyauce  to  be  made  to  them  of  the  trust  property  without  the 
necessity  of  any  decree. 

33.  Where  the  Court  appoints,a  new  trustee  it  is  through  the 
medium  of  a  reference  to  the  master  ;  and' the  general  rule  is  that 
the  court  gives  credit  to  the  Master's  report  of  the  appointment 
of  trustees,  unless  the  party  complaining  of  it  can  show -gome  ob- 
jection to  the  persons  who  have  been  selected,  (a) 

(a)  In  the  matter  of  the  Norwich  Charities,  2  Myl.  &  Cra.  275. 


APPENDIX 


"*       No.  1. 


*Case  in  the  reign  of  Henry  VII.  (o)         [  *510  ] 

This  case  first  came  on  in  the  14th  Henry  VII.  and  is  the  last 
case  reported  in  that  year.  In  the  King's  Bench  the  case  was 
such  :  A  man  had  certain  feoffees  in  liis  land  to  his  use,  and  made 
his  will,  and  wills  that  his  lands  should  be  sold  after  the  death  of 
oine  A.,  whom  he  willed  to  have  the  profit  daring  his  life  ;  which 
feoffees  have  enfeoffed  others  to  the  use  to  perform  the  will  of  the 
testator  ;  and  if  the  second  feoffees  shall  sell  the  land  or  not,  that 
was  the  matter,  Kings,  semble,  that  the  second  feoffees  may  well 
sell  the  land. 

This  case  came  on  again  in  Trinity  term,  in  the  15th  of 
Henry  VII.,  and  is  in  the  year-book,  fo.  11  b.  A  man  enfeoffs 
A.  and  B.  upon  trust,  and  afterwards  he  makes  his  will,  and  re- 
cites that  A.  and  B.  were  seised  to  his  use,  and  that  his  will  is, 
that  the  said  A.  and  B.  should  make  an  estate  to  his  wife  for  the 
term  of  her  life,  and  the  remainder  to  his  son  and  heir,  and  to 
the  heirs  of  his  body  begotten.  And  if  the  son  should  die  without 
heirs  of  his  body,  then  his  will  was  that  the  aforesaid  feoffees, 
should  alien  the  said  land,  and  that  the  money  arising  thereby 
should  be  distributed  for  his  soul.  Then  the  feoffor  died,  and  the 
feoffees  make  a  feoffment  over  to  the  same  use,  and  declare  their 
will  that  the  second  feoffees  shall  act  according  to  the  first  will,  &c. 

(a)  Vide  supra,  vol.  1,  p.  45. 


456  SUGDEN   ON   POWERS. 

And  the  wife  dies,  and  the  son  of  the  first  feoffor  dies  without  heir, 
and  the  second  feofees  alien  the  land  to  a  stranger  in  fee,  and  if 
this  alienation  was  good  or  not,  that  is  the  matter.  Per  Rede, 
Justice.  It  seems  to  me  that  the  second  feoffees  cannot  make  an 
alienation  according  to  the  will  of  the  first  feoffor  ;  for  the  will  of 
the  man  ought  to  be  taken  according  to  the  intent  of  him  who 
made  tlie  will,  and  according  to  the  law  of  the  land  ;  for  if  a  man 
makes  liis  will,  that  the  land  of  which  he  was  seised  shall  be  sold 

and  aliened  to  I.  S.  after  his  death,  &c.  and  then  dies 
[  *511  ]  *seised,  there  his  will  shall  not  be  performed,  because 

his  will  is  contrary  to  the  law  of  the  land,  to  make  a 
will  of  land  of  which  he  was  seised,  and  died  seised  ;  quodfuit  con- 
cessum  per  Tremaile.  And  so  if  a  man  has  feofiees  upon  confi- 
dence in  his  land,  and  makes  his  will,  that  one  I.  S.  shall  alien 
his  land,  and  there  is  no  such  person  in  rerum  natura,  there  his  will 
is  void,  because  no  other  man  can  sell  that ;  and,  for  that  reason, 
the  feoffees  shall  be  seised  to  the  use  of  the  heir,  &c.  because  it 
appears  by  the  Avill  that  no  other  man  shall  interfere  with  the  alien- 
ation. And  so  also  if  a  man  has  feoffees  in  his  land,  and  makes 
his  will  that  I.  N.  shall  alien  the  land  ;  there,  if  I.  N.  dies  with- 
out heir,  his  executors  shall  not  alien,  because  that  is  not  war- 
ranted by  the  will :  but  the  feoffees  shall  remain  seised  to  the  use 
of  the  heir  of  the  first  feoffor.  And  so  it  is  where  he  names  the 
feoffees  from  the  first  in  the  will,  and  then  he  says,  the  afore- 
said, &c.  feoffees  shall  alien  the  land  for  his  soul;  the  authority 
is  solely  given  to  them,  and  their  executors  cannot  alien  this. 
But  if  these  feoffees  make  a  feoffment  over  to  the  same  use,  yet 
the  first  feoffees  may  alien  the  land  according  to  the  will  of  the 
first  feoffor:  quod  fait  concessum  per  Fineux  et  Tremaile.  And 
also  the  second  feoffees  may  alien  the  land  by  the  commandment 
of  the  first  feoffees,  and  that  is  good,  for  it  is  the  sale  and  the 
alienation  of  the  first  feoffees  in  law.  And  no  one  will  deny  that 
the  second  feoffees  cannot  alien  the  laud  during  the  life  of  the  first 
feoffees,  if  it  be  not  by  their  commandment ;  so  that  it  be,  in  fact, 
their  alienation  ;  and  by  consequence  no  more  can  they  sell  after 
the  decease  of  the  first  feoffees.  Tremaile  to  the  same  purpose. 
And  there  is  a  diversity  where  the  will  is  that  the  alienation  shall 
be  made  to  a  person  certain  ;  and  where  it  is  that  the  alienation 
shall  be  made  generally  ;  for  if  the  will  was,  that  the  aforesaid 


APPENDIX.  457 

feoffees  alien  to  one  I.  S.,  there,  if  they  make  a  feoffment  over  to 
.the  same  use,  yet  the  second  feoffees  shall  make  this  alienation, 
for  there  is  in  a  manner  an  use  to  I.  S.  :  quod  fuil  concessum  per 
Rede  et  Fineux.  But  when  the  will  is,  that  the  aforesaid  feoffees 
shall  alien,  there  the  aiitliority  is  solely  given  to  them  ;  for  if  his 
will  was  tliat  his  executors  shall  alien  his  lands,  although  they 
refuse  to  alien,  yet  tlic  feoffees  cannot  alien.  So  if  his  will  was 
that  the  feoffees  shall  alien,  and  they  will  not,  but  die,  yet  the 
executors  cannot  alien.  And  so  it  is  here.  Fineux,  Chief  Jus- 
tice, to  the  same  purpose.  And  so  if  a  man  makes  not  a  will,  the 
common  law  makes  a  will  for  every  man,  as  to  his  lands  and  his 
goods,  and  that  is,  so  that  the  heir  shall  have  the  land,  and  the 
ordinary  the  goods.  But  if  a  man  is  desirous  that  his 
land  *should  be  aliened  in  another  manner  to  that  which  [  *ol2  ] 
the  common  law  ordains,  then  the  common  law  suffers 
him  to  make  his  will  of  tlicm.  And  every  will  which  a  man  makes 
ought  to  be  construed  and  taken  according  to  the  purport  of  the 
words  ;  or  as  it  may  be  implied  and  understood  by  the  words 
what  his  intent  was.  Therefore  here,  when  he  recites  the  namcs' 
of  the  feoffees,  and  then  says  that  the  aforesaid  feoffees  shall  alien, 
«fec.,  there  it  is  as  much  as  to  say  in  effect  that  no  other  shall  alien 
except  them.  xVnd  if  the  will,  was  that  the  aforesaid  feoffees 
should  alien  within  the  two  years  next  ensuing,  if  they  do  not  do 
so  they  cannot  do  it  afterwards,  but  the  heir  of  the  feoffor  shall 
have  the  land  for  ever.  And  if  a  man  makes  his  will  that  I.  S. 
shall  have  his  land  in  perpelvitm  for  his  life,  there  by  that  he 
shall  only  have  it  during  his  life  ;  for  these  words  "  during  his 
life,"  abridge  the  interest  given  before.  And  so  here,  when  he 
says  the  aforesaid  feollees  shall  alien,  there  no  other  can  have  that 
power  l>ut  only  them.  And  there  is  a  diversity  where  the  power 
given  to  the  feoffees  is  annexed  to  the  land,  and  where  not ;  for 
if  the  will  be,  that  the  aforesaid  feoffees  shall  make  an  estate  over 
to  a  certain  person  for  certain  years,  there,  if  they  make  feoffment 
over  to  the  same  use,  the  first  feoffors  cannot  do  that,  for  that 
power  is  a  thing  annexed  to  that  land,  which  no  one  can  do  but 
he  who  has  the  land.  But  here  the  will  was,  that  the  aforesaid 
feoffees  shall  alien  the  land,  <fec.  and  that  may  well  be  done  after 
the  feoffment  made  by  themselves  to  the  use  :  and  therefore  their 
power  is  not  determined  by  their  feoffment.  And  if  a  man  has 
Vol.  II.  39 


458  SUGDEN   ON   POWEES. 

feoffees  upon  confidence  in  his  land,  and  makes  his  -will  that  his 
feoffees  shall  alien  his  land,  to  pay  his  debts,  there  the  creditors 
shall  compel  the  feoffees  to  alien,  <fec. :  quodfvil  concessvm  per 
Rede  el  Tremai/e.  And  so  if  the  will  was  that  a  stranger  shall 
alien  this  land  to  one  I.  S.,  there  I,  S.  shall  compel  this  stranger 
hy  subpwna  to  alien  this  land  to  him ;  and  the  feoffees  cannot 
alien.  But  if  the  will  was,  that  the  feoffees  shall  alien  his  lands 
for  money  to  distribute,  &c.  (in  pios  ksks,')  there  no  man  can  com- 
pel them  to  make  an  alienation,  &c. ;  for  no  one  is  damaged,  al- 
though the  land  be  not  aliened,  and  so  there  is  a  diversity  :  qyod 
fmt  concessum.  And  if  a  man  lias  feoffees  upon  confidence,  and 
makes  a  will  that  his  executors  shall  alien  his  lands,  there  if  tlie 
executors  renounce  administration  of  the  goods,  yet  they  may 
alien  the  land,  for  the  will  of  land  is  not  a  testamentary  matter, 
nor  have  the  executors  to  interfere  in  this  will,  except  so  far  as  a 

special  power  is  given  to  them.  And  if  a  man  has  feof- 
['  *513  ]   fees  in  his  land,  *and  makes  his  will  that  his  executors 

shall  sell  his  land,  and  then  ho  does  not  make  executors, 
there  the  ordinary  shall  not  meddle  with  the  land  nor  the  adminis- 
trator neither,  for  the  ordinary  has  only  to  meddle  witli  testamen- 
tary matters,  as  of  goods  ;  and  consequently  no  more  can  the  ad- 
minstrator,  who  is  but  his  deputy.  And,  therefore,  it  was  lately 
adjudged  in  the  Exchequer  chamber  by  all  the  Judges  of  England, 
that  if  a  man  makes  a  will  of  his  lands,  that  his  executors  shall 
sell  the  land,  and  alien,  &c.  if  the  executors  renounce  administra- 
tion and  to  be  executors,  there  neither  the  administrators  nor  the 
ordinary  can  sell  or  alien,  &c.  ;  quod  nota.  Quod  fiat  concessum 
per  Rede  et  Tremai/e,  for  good  law.  And  if  a  man  makes  his 
will  that  his  executors  shall  alien  his  land,  without  naming  their 
proper  names,  if  they  refuse  the  administration,  and  to  be  execu- 
tors, yet  they  may  alien  the  land  :  qvud  fuit  concessvm  per  Fi- 
neux  et  Tremaile  for  clear  law  ;  Rede  non  dedixit.  And  if  a  man 
makes  his  will,  that  his  land  which  his  feoffees  have,  shall  be  sold 
and  aliened,  and  does  not  say  by  whom,  there  his  executors  shall 
alien  that,  and  not  the  feoffees,  per  Rede,  Tremaile,  et  Frowik. 
Fineux  said  nothing  to  this  this  day ;  but  the  day  before,  he  in  a 
manner  affirmed  this.  Conisby  said  that  the  feoffees  shall  alien 
this,  for  they  have  the  confidence  placed  in  them,  &c.  But  this 
was  denied,  for  executors  have  much  greater  confidence  placed  in 


APPENDIX.  459 

them  than  the  feofees  have,  for  the  money  to  arise  by  the  sale  of 
the  executors  shall  be  assets  in  their  hands,  and  therefore  they 
shall  sell.  Fineux,  Rede,  el  Tremaile  said,  that  if  a  man  makes 
his  will  that  his  feoffees  shall  alien  his  land,  before  the  alienation 
the  heir  may  take  the  profits,  and  they  are  seised  to  his  use ;  and 
if  an  alienation  be  not  made  by  them,  the  heir  shall  have  the  land 
for  ever. 

No.  2. 

Long^  V.  Rankin.(b) 

Dora.  Proc.  12  June  1822. 

Lord  Chief  Justice  Abbott. 

My  Lords, — In  this  case  of  Crawford  v.  Rankin,  the  question 
your  Lordships  were  pleased  to  propose  for  the  consideration  of 
the  Judges  was.  Whether  according  to  the  effect  in  the  law  of  the 
several  instruments  and  matters  stated  and  found  in  the  special 
verdict,  the  indenture  of  the  11th  of  April  1781,  ope- 
rated to  demise,  grant  or  limit  the  premise^  *therein  [  *514  ] 
contained,  to  David  Gamble  and  John  Rankin,  their 
heirs,  executors,  administrators  and  assigns,  for  the  lives  of  three 
persons  therein  named,  and  during  the  natural  life  of  the  survivor 
of  them,  or  for  and  during  the  full  space  and  term  of  thirty-one 
years,  which  lives  or  terms  of  years  shall  longest  continue  ? 

The  Judges  are  of  opinion  that  the  indenture  did  operate  to 
limit  the  premises  therein  mentioned  to  Gamble  and  Rankin,  their 
heirs,  executors  and  administrators,  for  the  natural  lives  of  the 
three  persons  therein  named,  and  the  survivor  of  them  ;  and  in 
case  all  the  three  persons  should  happen  to  die  within  the  period 
of  thirty-one  years,  then  for  the  remainder  of  a  term  of  thirty- 
one  years,  to  commence  and  be  computed  from  the  date  of  the 
indenture. 

As  to  one  part  of  the  question,  it  is  fit  I  should  refer  your 
Lordships  to  the  terms  of  the  power  under  which  the  lease  in 

(b)  Vide  supra,  vol.  1,  p.  58. 


460  SUDGEN   ON   POWERS. 

question  lias  been  granted.  The  power,  so  far  as  regards  the 
present  question,  is  a  power  to  demise  for  any  term  or  terms  of 
years  not  exceeding  thirty-one  years,  or  for  one,  two  or  three 
lives,  or  for  any  term  of  years  not  exceeding  thirty-one  years,  or 
number  of  lives  not  exceeding  three  lives  ;  (then  there  are  certain 
qualifications  not  material  to  the  present  purpose.)  Pursuant  to 
that  power  the  lease  professes  to  be  made :  "  To  have  and  to 
hold  the  said  demised  premises,  with  all  and  every  the  rights, 
members,  and  appurtenances  thereto  belonging,  or  in  anywise  ap- 
pertaining, unto  the  said  David  Gamble  and  John  Rankin,  their 
heirs,  executors,  administrators  and  assigns,  from  the  1st  day  of 
November  last  past,  for  and  during  the  natural  life  or  lives  of 
John  Dccryn,  sou  of  John  Decryn  of  Enniskillen,  merchant,  aged 
about  years,  and  the  natural  life  of  William  Gamble,  aged 

about  seven  years,  and  the  natural  life  of  Jonas  Gamble,  aged 
about  four  years,  the  two  last  mentioned  being  the  sons  to  David 
Gamble  (party  hereto,)  or  for  and  during  the  natural  life  of  the 
survivor  or  longest  liver  of  them,  or  for  and  during  the  full  term 
and  space  of  thirty-one  years." 

My  Lords,  the  form  of  this  lease,  as  regards  the  term  for  which 
the  tenements  are  to  be  holden,  is  unusual,  and  scarcely  known 
in  England,  but  it  was  stated  by  one  of  your  Lordships,  well  ac- 
quainted with  the  form  of  leases  in  Ireland,  to  be  common  in  that 
country  ;  we  think  the  language  of  the  power  must  be  understood 
with  reference  to  the  prevailing  practice,  and  we  think  the  lan- 
guage of  the  lease  is  conformable  to  and  warranted  by  the  power  ; 
and  we  sec  nothing  repugnant  in  itself,  or  contrary  to  law  in  such 
a  limitation.  Grants,  or  leases  for  the  life  of  one  or 
[  *olo  ]  more  persons,  and  of  the  survivor  of  them,  *and  for  a 
term  of  years  to  commence  at  the  death  of  the  survivor, 
are  not  unknown  in  England,  and  their  legality  has  not  been 
questioned ;  and  as  to  any  consequences  that  may  happen  to  oc- 
cur by  the  death  of  the  lessee,  or  of  the  persons  for  wliose  lives 
the  leases  may  be  made,  with  a  view  to  the  person  in  wliom  the 
interest  may  vest  by  the  operation  of  law,  there  does  not  appear 
to  be  any  greater  difficulty  in  one  class  th3.n  in  the  other  ;  upon 
this  point,  therefore,  I  conceive  it  to  be  unnecessary  to  trouble 
your  Lordships  further. 

The  validity  of  the^  lease  to  Gamble  and  Rankin,  considered 


APPENDIX.  461 

with  reference  to  the  iact,  that  before  the  time  of  the  making 
thereof  Robert^  Crawford,  who  is  therein  named  as  the  lessor,  had 
executed  certain  deeds  affecting  the  legal  estate,  which  he  took 
in  the  premises  mider  the  settlement  of  1761,  is  as  we  understand, 
the  important  part  of  the  question  proposed  to  us  by  your  Lord- 
ships, For  the  explanation  of  this  part  of  the  question  it  is  ne- 
cessary to  refer  to  the  several  deeds  and  facts  that  are  found  by 
the  special  verdict. 

It  is  found  that  by  virtue  of  deed  of  1761,  Robert  Crawford,  by 
indentures  of  lease  and  release,  bargained  and  sold  to  the  said 
Barry  Maxwell  and  John  Chaloner,  and  their  heirs,  they  then 
being  in  actual  possession  thereof,  the  lands  aforesaid  mentioned 
in  the  said  declaration,  to,  for,  and  upon  the  uses  declared  and 
specified  in  the  said  last-mentioned  indenture,  that  is  to  say,  to 
the  use  of  the  said  Jason  Crawford  for  the  term  of  his  natural 
life,  without  impeachment  of  waste,  and  with  full  power  to  com- 
mit waste,  with  remainder  to  the  said  Andrew  Crawford  and 
Ralph  Crawford,  parties  to  the  said  indenture,  and  their  heirs,  dur- 
ing the  life  of  the  said  Jason  Crawford,  uj)on  trust  to  preserve  con- 
tingent uses  therein  limited  from  being  barred  or  destroyed,  but 
yet  so  as  to  permit  and  suffer  the  said  Jason  Crawford  and  bis  as- 
signs to  receive  and  take  the  rents,  issues  and  profits  of  the  said 
lands  to  his  own  use,  during  the  term  of  his  natural  life,  with 
remainder  as  before  to  Robert  for  life,  and  to  trustees  during  his 
life,  to  preserve  contingent  remainders  ;  then  after  the  decease  of 
Robert,  to  the  use  of  the  first  son  of  the  said  Robert  Crawford, 
and  the  heirs  male  of  the  body  of  such  first  son  lawfully  begot- 
ten or  to  be  begotten  ;  and  for  the  want  of  such  issue,  to  the  use 
and  behoof  of  the  first,  second,  third,  fourth,  fifth,  sixth,  and  sev- 
enth, and  all  and  every  other  the  sons  of  the  body  of  the  said 
Robert  Crawford,  to  be  begotten  severally  one  after  another,  as 
they  and  every  of  them,  should  be  in  seniority  of  age  and  priority 
of  birth,  and  of  the  several  and  respective  heirs  male  of  the  se- 
veral and  respective  bodies  of  such  son  and  sons  law- 
fully *to  be  begotten,  the  elder  of  such  son  and  sons,  [  *ol6  J 
and  the  heirs  male  of  his  and  their  body  and  bodies  law- 
fully issuing,  being  always  to  be  preferred,  and  to  take  before  the 
younger  of  such  sou  and  sons,  and  the  heirs  male  of  his  and  their 
body  and  bodies  respectively  issuing :  and  for  the  want  of  such  issue 

39* 


462  SUGDEN   ON   POWERS. 

to  tlic  ubc  of  the  daughters  of  the  said  Robert  Crawford,  as  ten- 
ants in  common,  and  the  respective  heirs  of  the  .bodies  of  sucli 
daughters  ;  and  in  default  of  such  issue,  remainder  to  John  Craw- 
ford,' second  son  of  the  said  Jason,  for  and  during  the  term  of  his 
natural  life,  without  impeachment  of  waste,  remainder  to  the  said 
Andrew  Crawford  and  Ralph  Crawford  and  their  heirs,  during 
-the  life  of  the  said  John  Crawford,  upon   trust  to  preserve  the 
contingent  uses  therein  limited  from  being  barred  ;"  and  then, 
my    Lords,   there   are   these  terms,  "  Provided  always,  that  it 
shall  and  may  be  lawful  to  and  for  the  said  Jason  Crawford,  and 
Robert  Crawford,  and  John  Crawford,  and  Ralph  Henry  Craw- 
ford respectively,  when  and  as  they  shall  respectively  be  in  the  ac 
tual  possession  of  the  said  lands,  tenements  and  hereditaments, 
hereinbefore  granted   by  virtue  of  the  limitations  aforesaid,  and 
not  before,  by  any  writing  or  writings  under  their  respective 
hands  and  seals,  attested  by  two  or  more  credible  witnesses,  to 
make  any  lease  or  leases  of  all  or  any  part  of  the  said  lands,  ten- 
ements, hereditaments  and  premises,  to  any  person  or  persons 
whatsoever,  for  any  term  or  terms  of  years  not  exceeding  thirty- 
one  years,  or  one,  two  or  three  lives,  or  for  any  term  of  years  not 
exceeding  thirty-one  years,  or  number  of  lives  not   exceeding- 
three  lives."     Then  there  is  this  proviso,  "  So  as  such  lease  or 
any  leases  be  made  to  commence  in  possession  and  not  in  rever- 
sion, or  at  a  day  to  come,  and  be  not  made  without  impeachment 
of  waste,  and  so  as  upon  all  and  every  such  lease  or  leases  to  be 
made  there  be  reserved  yearly,  payable  during  the  continuance 
thereof,  the  best  and  most  improved  yearly  rent  which  at  the  time 
of  the  making  thereof  can  or  may  be  gotten  for  the  same,  and  so 
as  no  fine  or  sum  of  money,  or  other  thing  in  lieu  of  a  fine  or  sum 
of  money,  be  taken  for  making  such  lease  or  leases." 

The  special  verdict  further  finds,  "  That  Robert  Crawford,  be- 
ing seised  as  aforesaid,  by  certain  indentures  of  lease  and  release, 
bearing  date  on  the  loth  of  March,  1772,  made  between  the  said 
Robert  Crawford  of  the  one  part,  and  John  Dawson  Coates, 
George  Simpson  and  William  Wilde,  of  the  other  part,  gave, 
granted,  bargained,  sold,  released  and  confirmed  unto  Coates, 
Simpson  and  Wilde,  all  the  lands  in  question,  together  with  all 
and  singular  the  rents,  members  and  appurtenances,  and 
£  "SIT  ]  so  on,  unto  said  Coates,  Simpson  and  Wilde,  *and  the 


APPENDIX.  463 

survivor  and  survivors  of  them,  and  the  heirs  and  assigns  o 
such  survivor,  ior  and  during  the  life  of  the  said  Robert  Craw- 
ford, to  the  use  of  the  said  John  Dawson  Coates,  George 
Simpson  and  Robert  Wild,  and  the  survivors  and  survivor  of 
them,  his  and  their  heirs  and  assigns,  for  the  life  of  the  said  Rob- 
ert Crawford,  in  trust  to  and  for  the  several  uses  and  jDurposes 
following,  that  is  to  say,  thereby  and  thereout  in  the  first  place 
to" reserve  and  pay  to  the  said  Coates,  ISimpson  and  Wilde,  and 
the  survivors  and  survivor  of  them,  their  heirs  and  assigns,  yearly 
and  every  year  during  the  life  of  the  said  Robert  Crawford,  the 
sum  of  GO/,  sterling,  clear  above  all  deductions  and  outgoings 
whatsoever,  by  two  equal  half-yearly  payments  in  each  and  every 
year,  during  the  life  of  the  said  Robert  Crawford,  and  from  and 
after  the  payment  thereof,  and  subject  thereto,  then  to  pay  over 
the  remainder  of  tlie  rent  arising  out  of  the  said  hereby  granted 
lands,  from  time  to  time,  under  the  order  of  the  said  Robert 
Crawford  ;''  and  then  he  covenants  with  them  tlmt  a  yearly  rent 
of  80/.  clear  above  all  dcdiictious  and  outgoings  whatsoever,  shall 
be  paid  by  rent  reserved  out  of  the  hereby  granted  premises  on 
every  first  day  of  May  and  first  day  of  November  in  each  and 
every  year  during  the  life  of  the  said  Robert  Crawford,  by  two 
equal  portions,  unto  the  said  John  Dawson  Coates,  George  Simp- 
son and  William  Wilde,  and  the  survivors  and  survivor  of  them, 
his  and  their  heirs  and  assigns. 

There  is  also  another  covenant  in  this  deed  of  release,  which  it 
is  necessary  for  me  to  draw  your  Lordships'  attention  to  ;  "  and 
the  said  John  Dawson  Coates,  George  Simpson  and  William 
Wilde,  do  hereby  for  themselves  severally,  and  for  their  several 
and  respective  heirs  and  assigns,  covenant  and  promise,  to  and 
with  the  said  Robert  Crawford,  that  in  case  the  present  lease  of 
the  said  hereinbefore  granted  premises  shall  ha})pen  to  expire 
during  the  life  of  the  said  Robert  Crawford,  that  tlien  it  shall  and 
may  be  lawful  to  and  for  the  said  Robert  Crawford  to  demise  and 
let  the  same  to  such  person  or  persons,  and  for  such  term  and 
time,  as  he  shall  think  proper,  with  the  consent  of  the  said  John 
Dawson  Coates,  George  Simpson  and  William  Wilde,  or  the  sur- 
vivors or  survivor  of  them,  his  or  their  heirs  or  assigns,  first  had 
and  obtained  in  writing,  provided  a  yearly  rent  be  reserved 
thereon,  not  less  than  the  present  yearly  rent  of  80/.  sterling  ;" 


464  SUGDEN  ON   POWERS. 

and  it  appears  that  notwithstanding  the  conveyance  by  Robert 
Crawford,  still  that  Robert  Crawford  was  to  have  the  power  of 
granting"  leases,  according  to  the  power  reserved  to  him,  with 
their  consent,  taking  care  to  reserve  not  less  rent  than  was  re- 
served before. 
[  *518  ]  *The  special  verdict  further  linds,  that  on  the  11th 
of  xVpril,  1811,  Robert  Crawford  demised  to  David 
Gamble  and  John  Rankin  certain  laud,  containing  in  the  whole 
about  210  acres,  to  have  and  to  hold  the  said  premises,  unto  the 
said  David  Gamble  and  John  Rankin,  their  heirs,  executors, 
administrators  and  assigns,  from  the  1st  of  November  last  past, 
for  and  during  the  lives  of  three  persons  there  named,  or  for  and 
during  tlie  full  term  and  space  of  thirty-one  years,  which  lives  or 
term  of  years  shall  longest  continue,  they  the  said  David  Gamble 
and  John  Rankin,  their  heirs,  executors,  administrators  and  as- 
signs, yielding  and  paying  therefor  and  thereout,  yearly  and  every 
year  during  the  said  term  hereby  demised  unto  the  said  Robert 
Crawford,  his  executors,  administrators  and  assigns,  the  yearly 
rent  of  89/.  Then  there  are  all  the  covenants  required  in  this 
lease,  so  that  this  lease  is  conformable  to  the  power  reserved  in 
the  indenture  of  1761.  It  is  further  found,  that  this  indenture 
was  so  made  and  executed  by  the  consent  of  the  said  John  Dawson 
Coates,  George  Simpson  and  William  Wilde. 

It  further  appears,  that  Robert  Crawford  died  in  1788,  and 
that  the  present  ejectment  has  been  brought  by  the  person  next, 
in  remainder,  according  to  the  limitations  of  the  settlement  of 
1762. 

My  Lords,  we  are  of  opinion,  that  by  the  deeds  granting  the 
annuity  in  1772,  Robert  Crawford  had  parted  with  the  life-estate 
to  which  he  had  become  entitled  under  the  settlement;  but  never- 
theless the  life-estate  originally  vested  in  him  was  not  destroyed 
by  those  deeds,  as  it  might  perhaps  have  been  by  a  fine  or  feoff- 
ment purporting  to  convey  the  fee ;  an  estate  for  his  life  still 
continued,  though  it  was  no  longer  vested  in  him ;  and  by  the 
deeds  of  1772  an  authority  was  reserved  to  him,  as  between  him 
and  the  persons  to  whom  he  conveyed  his  life-estate,  enabling  him 
to  grant  leases  with  their  assent,  upon  certain  conditions  as  to  the 
amount  of  the  rent  to  be  reserved.  This  authority  is  reserved  in 
the  form  of  a  covenant  on  their  part  to  permit  him  so  to  lease, 


APPENDIX.  465 

Ijut  we  consider  that  form  sufficient  to  effect  the  object  of  the 
parties,  so  far  as  they  were  concerned.  Simpson,  Coates  and 
Wilde,  the  grantees  of  the  life-estate,. assented  to  the  lease  of 
1781,  and  that  lease  is  in  other  respects  conformable  to  the 
authojitics  reserved  by  the  covenant.  Upon  these  facts  it  is 
obvious  that  both  Robert  Crawford  the  lessor,  and  the  present 
defendants,  the  lessees,  were  estopped,  at  least  during  his  life, 
from  questioning  the  validity  of  the  lease  at  law,  and  if  Coates, 
Simpson  and  Wilde,  had  attempted  to  disturb  the 
lessees,  a  court  of  equity  *would  have  restrained  them  [  *519  ] 
from  doing  so.  It  is  true  that  Robert  Crawford  could 
not,  after  having  conveyed  his  life-estate  to  Coates  and  others, 
derogate  fi'om  the  .effect  of  that  conveyance  by  an  execution  of  his 
power ;  and  the  inability  to  derogate  from  a  prior  conveyance 
works  what  is  usually  called  a  suspension  of  a  power.  As,  if  land 
be  granted  to  A.  and  his  heirs,  to  such  uses  as  B.  shall  appoint, 
and  in  the  mean  time  to  B.  for  his  life,  or  any  greater  estate,  here 
B.  has  a  power  to  limit  and  appoint  the  uses  for  the  fee ;  but  if 
he  makes  a  lease  for  years  or  for  life,  before  he  executes  that 
power,  common  justice  requires  that  he  should  not  derogate  from 
his  own  grant  by  a  subsequent  appointment  of  the  fee,  and  his 
power,  therefore,  is  suspended  as  far  as  regards  the  lease  and  the 
interest  of  the  lessee,  and  his  appointee  must  take  subject  to  the 
lease.  But  the  parts  of  this  s^jecial  verdict  to  which  I  have 
directed  the  attention  of  your  Lordships  show  that  the  lease  to 
the  defendants  was  not  in  derogation  of  the  estate  granted  to 
Coates,  Simpson  and  Wilde,  by  the  deeds  of  1772,  but  rather  in 
conformity  to  it. 

The  only  question  is,  whether  the  lease,  upon  tlie  death  of 
Robert  Crawfoi'd,  became  void  as  against  the  remainder-man,  and 
we  are  of  opinion  that  it  did  not ;  leases  for  years  made  in  virtue 
of  a  power,  are  not  derived  out  of  the  estate  of  the  lessor.  It  is 
not  essential  to  the  validity  of  a  leasing  power,  or  of  a  lease 
granted  in  virtue  of  such  a  power,  that  the  lessor  should  have  any 
interest  whatever  in  the  lands  demised ;  such  powers  are  not 
unfrcquently  given  to  persons  to  whom  no  estate  in  the  land  is 
given.  They  are  often  and  more  often  given  to  persons  to  whom 
as  in  the  present  instance  a  life-estate  is  also  given.  On  such 
occasions  they  are  more  or  less  guarded  accordmg  to  the  discre- 


466  SUGDEN   ON   POWERS. 

tion  of  the  settler  with  provisoes  as  to  rent  and  other  matters  for 
the  benefit  of  the  remainder-man,  and  so  guarded,  they  arc  con- 
sidered beneficial  to  the  whole  inhci-itance,  and  to  all  who  may 
successively  become  entitled  to  portions  of  it,  as  providing  the 
means  of  keeping  the  land  continually  in  a  proper  state  of  culti- 
vation. A  leasing  power  given  to  a  tenant  for  life  is  usually 
spoken  of  in  our  books  as  a  power  appendant  to  the  estate  of  the 
tenant  for  life  ;  and  it  is  said  that  the  estate  of  the  lessee  is  in 
such  a  case  derived  out  of  the  estate  of  the  tenant  for  life,  for 
such  period  of  the  term  as  he  may  happen  to  live.  It  would  pro- 
bably be  more  correct  to  say  that  it  operates  upon  that  estate, 
than  to  say  it  is  derived  out  of  it  even  during  that  period. 

It  is  not  necessary  to  say  in  the  present  case  that  a 
[  *o20  ]  leasing  power  *inay  not  by  the  terms  in  which  it  is  given 
be  inseparably  annexed  to  the  estate  of  the  tenant  for 
life  as  to  become  void  and  inoperative,  if  he  parts  with  his  estate, 
and  transfers  it  to  another.  This  probably  may  be  so  by  the 
terms  in  whicli  the  power  is  given,  because  he  who  gives  it  may 
give  it  with  what  qualifications  he  pleases ;  but  as  I  have  already 
observed,  it  is  not  essential  to  the  validity  of  such  a  power  that  it 
should  be  appurtenant,  or  annexed  to  any  estate  in  the  land.  It 
is  also  immaterial  to  the  remainder-man  whether  or  not  it  be  so 
annexed ;  his  security  depends  upon  the  conditions  and  qualifica- 
tions under  which  the  power  is  to  be  executed,  and  not  upon  the 
estate  or  interest  of  the  person  by  whom  it  is  executed.  If  these 
are  not  duly  observed  the  lease  is  void  as  against  him ;  and  if 
they  are  duly  observed,  it  matters  not  to  him  whether  the  estate 
originally  given  to  his  predecessor  continued  vested  in  that  pre- 
decessor at  the  time  of  granting  the  lease,  or  had  been  previously 
transferred  to  another  person. 

Many  occasions  arise  in  which  it  becomes  important  to  the  con- 
venience of  a  tenant  for  life  that  he  should  transfer  his  estate  to 
another ;  an  execution  of  the  leasing  })ower  after  such  a  transfer 
cannot,  for  the  reasons  already  given,  be  prejudicial  to  the 
remainder-man ;  and  the  reasons  upon  which  such  powers  have 
been  introduced  show  that  it  may  be  more  beneficial  to  him  that 
the  leasing  power  should  be  retained,  and  continue  to  exist,  than 
that  it  should  be  extinguished  and  anniliilated.  We  ought  not, 
therefore,  to  hold  that  such  a  power  is  extinguished  by  a  transfer 


APPENDIX.  467 

of  the  estate  unless  we  see  clearly,  in  the  language  of  the  deed 
whereby  the  power  is  created,  that  the  donor  of  the  power  intend- 
ed inseparably  to  annex  it  to  the  life-estate  given,  and  to  a  con- 
tinuance of  that  estate  in  the  identical  person  to  whom  it  is  given ; 
and  this  brings  me  to  the  consideration  of  the  particular  terms 
wherein  his  power  is  created,  "  Provided  always,  that  it  shall  and 
may  be  lawful  to  and  for  the  said  Jason   Crawford,  and  John 
Crawford,  and  Ralph  and  Henry   Crawford   respectively,  when 
and  as  they  shall  respectively  be  in  the  actual  possession  of  said 
lands,   tenements   and    hereditaments   herein-before   granted   by 
virtue  of  the  limitations  aforesaid,  and  not  before,  by  any  writing 
or  writings  under  their  respective  hauds  and  seals,  attested  by 
two  or  more  credible  witnesses,  to  make  any  lease  or  leases  of  all 
or  any  part  of  the  said  lands,  tenements,  hereditaments  and  pre- 
mises, to  any  person  or  persons  uhatsoever,  for  any  term  or -terms 
of  years,  not  exceeding  thirty-one  years,  or  for  one,  two 
or  three  lives,  or  for  any  *term  of  years  not  exceeding  [  *521  ] 
thirty-one  years,  or  number  of  lives  not  exceeding  three 
lives,  so  as  such  lease  or  any  leases  be  made  to  commence  in 
])OSsession,  and  not  in  reversion,  or  at  a  day  to  come,  and  be  not 
made  without  impeachment  of  waste,  and  so  as  upon  all  and  every 
such  lease  or  leases  so  made   there  be  reserved  yearly,  payable 
during  the  continuance  thereof,  the  best  and  most  improved  yearly 
rent  which  at  the  time  of  making  thereof  can  or  may  be  gotten 
for  the  same,  and  so  as  no  fine,  or  sum  of  money,  or  other  thing 
in  lieu  of  a  fine  or  sum  of  money,  be  taken  for  making  such  lease 
or  leases,  any  thing  herein  contained  to  the  contrary  thereof  not- 
withstanding." 

My  Lords,  this  power  is  given  to  several  who  are  to  take  in 
succession  ;  and  we  consider  the  words  "'■  and  not  before,"  to  be 
most  important  in  the  present  case.  For  looking  at  the  whole 
clause  we  do  not  find  that  the  donor  intended  to  annex  the  power 
to  the  estate ;  and  we  think  all  the  words  of  the  clause  are  best 
satisfied  by  construing  it  to  mean  only  that  every  person  to  whom 
an  estate  for  life  is  given  may  make  leases  after,  though  not 
before,  the  estate  shall  have  once  vested  in  him,  and  during  its 
continuance,  whether  in  him,  or  another  deriving  under  him. 

We  have  found  no  case  in  which  the  effect  of  a  power  worded 
like  the  present  has  come  under  the  consideration  of  a  court ;  and 


468  SUGDEN   ON   POWERS. 

in  tlic  absence  of  an  authority  we  think  the  construction  that  I 
have  mentioned  is  the  pro})er  construction  of  this  particular  clause. 

One  other  observation  only  remains  to  be  made,  and  that  is 
this,  a  lessee  is  in  law  and  reason  considered  as  a  [mrchaser,  even 
if  he  takes  at  the  best  rent  that  the  land  be  worth  at  the  time, 
because  he  forms  his  engagements  and  regulates  his  affairs  upon 
the  faith  of  his  lease,  and  often  expends  his  money  in  the  improve- 
ment of  the  land,  in  confidence  that  he  shall  reap  the  benefit  of 
his  expenditure  by  the  enjoyment  of  his  term.  And  the  estate  of 
a  })urehaser  is  not  to  be  taken  from  him  unless  it  be  for  some  good 
reason,  founded  in  justice,  or  in  the  plain  intention  and  expres- 
sions of  the  original  settler  of  the  estate  ;  we  think  no  such  reason 
is  to  1)0  found  in  the  present  case. 

Lord  Chancellor. — My  Lords,  as  it  will  be  necessary  to  com- 
municate the  substance  of  this  opinion  to  some  noble  lords  who 
were  present  on  the  argument,  I  move  your  Lordships,  therefore, 
that  this  House  do  proceed  to  give  judgment  in  this  case  on 
Monday  next. 

Ordered  accordingly. 

[  *522  ]  *  Wednesday  19th  June,  1822. 

Lord  Chancellor. — My  Lords,  in  the  case  of  Long  and  Craw- 
ford your  Lordshii)S  were  pleased  to  propound  the  following 
question  for  the  consideration  of  the  Judges :  "  Whether  accord- 
ing to  the  effect  in  the  law  of  the  several  instruments  and  matters 
stated  and  found  in  the  special  verdict,  the  indenture  of  the  11th 
of  April  1781,  operated  to  demise,  grant  or  limit  the  premises 
therein  contained  to  David  Gamble  and  John  Rankin,  their  heirs, 
executors,  administrators  and  assigns,  for  the  lives  of  three  per- 
sons therein  named,  and  during  the  natural  life  of  the  survivor  of 
them,  or  for  and  during  the  full  space  and  term  of  thirty-one 
years,  which  lives  or  terms  of  years  shall  longest  continue  ?" 

Your  Lordships  have  had  the  unanimous  opinion  of  the  Judges 
upon  that  question,  and  it  does  not  appear  to  me  that  there  is 
any  thing  further  I  could  suggest  to  your  Lordships.  The  result 
of  that  is,  that  as  far  as  the  matter  depends  upon  the  present 
question,  this  judgment  ought  to  be  affirmed. 

My  Lords,  attending  to  the  value  of  this  question,  and  con- 


APPENDIX.  469 

sidering  that  the  property  aflfected  is  but  small,  and  as  this  court 
has  decided  in  the  same  way  as  the  court  in  Ireland,  it  does  not 
appear  to  me  to  be  improper  that  the  judgment  should  be  affirmed, 
Avith  150/.  costs. 

My  Lords,  I  do  not  enter  into  any  discussion  of  the  circum- 
stances of  the  case,  but  I  am  a  little  anxious  to  say,  that  I  desire 
it  may  not  be  understood  that  I  ha*-e  given  any  opinion  whatever 
with  respect  to  the  decision  of  Renn  v.  Buckley. 


No.  3.(c) 

Sketch  of  an  Arg^mnent  in  favour  of  the  Destruction  of  the 
Powers,  in  Roper  v.  Halifax. 

The  first  point  is,  that  the  powers  were  destroyed  by  the 
recovery. 

The  powers  of  sale  and  exchange  were,  with  reference  to  the 
estates  created  by  the  settlement,  shifting  uses :  Thus,  take  the 
settlement  to  be,  to  Mr.  Bouverie  for  life  ;  remainder  to  trustees 
and  their  heirs,  during  his  life,  to  preserve  contingent  remainders  ; 
remainder  to  his  son  in  tail,  with  remainders  over,  and 
with  the  power  of  sale  and  ^exchange.  The  use  to  be  [  *523  j 
created  by  the  power  would  be  a  shifting-  use ;  for  the 
estate  created  by  tlie  execution  of  it,  viz,  the  fee  in  the  purchaser, 
would  take  place  in  derogation  of  the  estates  limited  by  the  set- 
tlement ;  that  is,  they  would  cease,  and  the  use  of  tlie  fee-simple 
would  shift,«ind  become  vested  in  the  purchaser.  The  power  it- 
self therefore  may,  with  sufficient  propriety,  be  called  a  shift- 
ing one. 

Xow,  suppose  the  estate  to  be  limited  in  the  manner  above 
mentioned,  but,  instead  of  the  power  of  sale  and  exchange,  a 
clause  to  be  introduced,  providing,  that  upon  payment  by  A.  of 
100/.  the  uses  shall  cease,  and  the  fee  vest  in  him,  this  is  strictly 
a  shifting  use. 

In  the  case  last  put,  it  is  clear,  beyond  a  doubt,  that  if  a  re- 
covery be  suflcred  by  Mr.  Bouverie  and  his  son,  before  A.  pay 
the  100/.,  the  shifting  would  be  effectually  barred.     Indeed  it  is 

(c)  Vide  supra,  vol.  1,  78.  103. 

Vol.  II.  40 


470  8UGDEN  ON  POWERS. 

SO  clear  that  a  recovery  will  bar  such  shifting  uses,  that  it  is  set- 
tled that  estates  may  be  made  to  shift  at  any  time,  however  re- 
mote, where  there  is  a  regular  estate-tail  limited  ;  because  as  the 
tenant  in  tail  can  by  a  recovery  liar  the  estate-tail,  and  also  the 
shifting-  use,  there  is  no  danger  of  perpetuity.  NichoUs  t.  Shef- 
field, 2  Bro.  C.  C.  215.(1) 

The  doctrine  goes  farther.  ^  recovery  by  tenant  in  tail  will 
even  bar  a  condition  annexed  to  the  estate-tail.  A  gift  to  A.  in 
tail,  determinable  upon  his  non-payment  of  1,000^.,  with  remain- 
ders over  ;  A.  suffers  a  common  recovery  before  the  day  of  pay- 
ment of  the  1,000/,  and  docs  not  pay  the  money,  yet,  because  he 
was  tenant  in  tail  when  he  suffered  the  recovery,  by  that  he  bars 
all.  See  1  Mod.  Ill,  where  this  is  laid  down  by  Lord  Hale  ; 
and  sec  Pullen  v.  Ready,  2  Atk.  587. 

If  this  1)0  so,  where  the  event  upon  which  the  use  is  to  shift, 
and  the  person  who  is  to  take  it,  is  marked  out  by  the  settlement, 
let  us  consider  how  the  case  stands,  where,  as  in  the  present  case, 
a  power  only  is  introduced  in  the  settlement. 

All  the  uses  arc  created  out  of  the  original  seisin,  whether 
they  are  designated  by  the  deed,  or  a  power  of  designation  is 
given  to  some  person  named  in  the  deed ;  in  this  respect  the  uses 
are  similar.  And  it  seems  to  be  wholly  immaterial  whether  the 
shifting  use  is  limited  by  the  deed  creating  the  primary  use,  or 
under  a  power  in  the  deed.  Thus,  if  a  fee  be  limited  to  A.,  with 
a  proviso,  that  if  B.  die  in  his  lifetime,  C.  shall  have  the  fee  ;  A. 
takes  a  qualified  fee,  and  without  any  power  to  defeat  the  shift- 
ing use,  which,  on  the  happening  of  the  event,  will  at 
[  *524  ]  once  arise  and  take  effect  by  relation  out  of  the  original* 
seisin.  If  a  power  be  given  to  C,  in  the  same  event, 
to  revoke  the  use  to  A.,  and  limit  it  to  B.,  on  the  execution  of 
the  power  the  use  to  B.  would  take  effect  in  the  same  manner  as 
if  it  had  been  inserted  in  the  original  deed  in  the  place  of  the 
power.     There  is  therefore  no  distinction  between  the  cases. 

Now  put  our  case.  We  have  seen  that  if  the  shifting  use  were 
limited  by  the  settlement  itself,  the  recovery  would  bar  it ;  wliy 
should  not  the  recovery  liave  the  same  effect,  where  a  povjer  is 
given  to  raise  a  shifting  use,  which  would  take  effect  in  deroga- 

(1)  See  2  Jarman  on  Wills,  729, 


APPENDIX. 


471 


tion  of  the  estate-tail  ?  The  power  is  for  this  purpose  the  same 
as  a  use  expressly  limited.  It  is  unimportant,  both  to  the  per- 
sons taking  under  the  shifting  use  and  the  tenant  in  tail,  whether 
the  estate-tail  is  to  be  defeated  by  a  clause  in  the  deed  providing 
at  once  for  the  event,  or  by  a  clause  giving  another  person  a 
power  to  name  the  event.  If  the  event  provided  for  happen,  or 
the  power  be  exercised  [as  the  case  may  be]  before  a  recowry, 
the  estate-tail  will  be  defeated.  If  a  recovery  be  first  suifcred, 
the  use  or  power,  whichever  it  is,  will  necessarily  be  defeated. 
Try  the  point  thus  : 


A  limitation. 

To  the  use  of  A.  and  the  heirs 
of  her  body  by  a  Searle  to  be  be- 
gotten. 

Provided,  and  upon  condition, 
that  if  she  do  marry  any  but  a 
Searle,  that  then  it  shall  be 

To  J.  S.  and  his  heirs. 

This  case  is  put  by  Lord  Holt, 
in  Page  and  Hayward,  as  a  case 
in  which  a  recovery  before  the 
event  would  bar  the  gift  over. 


A  limitation. 

To  the  use  of  A.  and  the  heirs 
of  her  body,  by  a  Searle  to  be 
begotten. 

Provided,  and  upon  condition, 
that  if  B.  sell  the  estate,  and  ap- 
point it  to  a  purchaser,  then  it 
shall  be 

To  the  purchaser  and  his  heirs. 

This  is  our  case,  and  it  is  in 
no  respect  distinguishable  from 
the  one  on  the  other  side. 


It  must  be  kept  in  view,  that  powers  -cannot  be  compared  with 
condUions  at  common  law.  Thus,  in  Bullock  v.  Thorne,  Mo.  615, 
Walmesley,  J.  held  that  a  lease,  for  years  does  not  suspend  the 
power  of  revocation,  if  it  be  raised  by  way  of  use  ;  otherwise,  if 
it  is  of  a  condition  annexed  to  an  estate  in  possession.  And  the 
Court  held,  that  if  one  lias  a  power  of  revocation  entire,  and  he 
extinguishes  or  suspends  the  power  in  part,  he  may  still  revoke 
for  the  residue,  if  it  be  by  way  of  use ;  but  not  so  of  a  condition 
annexed  to  the  land. 

*Thc  circumstance  of  the  tenant  for  life  having  in  [  *525  ] 
this  case  not  intended  to  destroy  his  powers,  is  of  no 
weight.     The  question  is,  what  was  the  effect  of  the  recovery  ? 

The  reversion  reserved  to  him  was  wholly  unimportant ;  be- 
cause although  that  remained  in  him,  yet  the  poivers  were  over- 
reached by  the  recovery.     The  20,000Z.  clause  is  also  of  no  effect 


472  SUGDEN   ON   POWERS. 

in  this  case  ;  it  would  revest  in  liim  his  estate  for  life.  That  the 
recovery  never  could  over-reach^hui  it  could  not  bring  back  with 
it  the  powers  which  the  recovery  did  over-reach.  A.  clause  to 
this  eifect  was  originally  introduced,  in  order  to  guard  the  estate 
for  life  against  the  incumbrances  of  the  tenant  in  tail. 

Upon  the  first  point,  tlien,  the  argument  stands  thus  : 

A  shifting  use,  limited  by  the  deed,  would  be  defeated  by  the 
recovery,  whatever  was  the  intention  of  the  parties. 

A  power  is  a  shifting  use,  and  must  therefore  also  be  defeated 
by  the  recovery. 

And  the  circumstances  of  this  case  cannot  vary  the  rule  of  law. 

If  it  should  be  held,  that  neiv  powers  were,  upon  the  intention, 
reserved  or  created  by  the  recovery-deed,  yet  that  would  not  help 
the  title  ;  because,  sucli  neiu  powers  could  not  over-reach  the  sub- 
sisting estates  under  the  first  settlement,  which  were  not  over- 
reached by  the  recovery. 

Secondly, — If,  however,  the  recovery  did  not  destroy  the  pow- 
er, yet  the  subsequent  settlement  clfectully  released  it. 

If  the  i)owers  were  not  destroyed  by  the  recovery,  the  estates 
after  the  recovery  stood  limited,  To  the  use  that  Mrs.  Bouverie 
might  receive  pin-money ;  remainder  to  a  trustee  for  a  term  of 
years  to  secure  it ;  remainder  to  Mr.  Bouverie  for  life  ;  remainder 
to  trustees  and  their  heirs,  during  his  life,  to  preserve  contingent 
remainders ;  remainder  to  Mrs.  Bouverie  for  life ;  remainder  to 
trustees,  as  before,  to  preserve ;.  remainder  to  trustees  for  500 
years  upon  trusts ;  remainder  to  such  uses  as  Mr.  Bouverie  and 
his  son  should  appoint.  In  default  of  appointment,  to  the  son  in 
tail ;  remainder  to  the  father  in  fee ;  with  a  power  of  sale  in  the 
trustees,  and  the  survivor  of  them,  and  the  heirs  and  assigns  of 
such  survivor,  with  the  consent  of  Mr.  and  Mrs.  Bouverie,  or  the 
survivor. 

The  trustees  were  Mr.  Batt  and  Mr.  Blake.  In  this  state  of 
things  tlie  deed  of  1811  was  executed. 

By  that  deed  the  joint  power  of  Mr.  Bouverie  and  his  son  was 

exercised,  and  the  estates  were  limited  to  the  uses  after 

[  *526  ]  mentioned ;  *subject  "  To  the  uses,  estates,  and  powers, 

by  the  recovery-deed  limited  or  confirmed  antecedently 

to  the  joint  power." 

This,  of  course,  is  immaterial.     The  power  was  expressly  upon 


APPENDIX.  473 

its  creation,  as  far  as  the  parties  could  effect  it,  made  subject  to 
certain  uses,  estates,  and  powers,  and  therefore  they  could  only- 
execute  the  power  subject  to  them.  The  effect  must  have  been 
the  same,  whether  the  execution  of  the  power  had  been  expressed 
to  be  subject  to  the  prior  uses,  &c.  or  not,  because  it  was  upon 
its  creation  made  subject  to  them. 

Then  comes  the  second  witnessing  part  of  the  deed,  by  which 
Mr.  Batt,  Mr.  Blake,  and  Mr.  &  Mrs.  Bouverie,  convey  the 
estates,  but  subject,  and  without  prejudice  as  aforesaid.  To  the 
use  that  Mrs.  Bouverie  might  receive  pin-money  ;  remainder  to  a 
trustee  for  a  term  of  years  to  secure  it ;  remainder  to  Mr.  Bou- 
verie for  life ;  remainder  to  the  trustees,  and  their  heirs,  during 
his  life,  to  preserve  contingent  remainders ;  remainder  to  Mrs.. 
Bouverie  for  life ;  remainder  to  the  trustees,  as  before,  to  pre- 
serve ;  remainder  to  trustees  for  500  years,  upon  trusts  ;  remain- 
der to  Edward  Bouverie  the  son,  for  life  ;  remainders  over  ;  with 
a  power  of  sale  and  exchange  to  the  trustees,  and  the  survivor  of 
them,  and  the  executors,  administrators  and  assigns  of  such  sur- 
vivor, at  the  request  of  Mr.  Bouverie  during  his  life,  and  after 
bis  decease  at  the  request  of  the  tenant  for  life  in  possession, 
during  his  or  her  life. 

Mr.  Batt  and  Mr.  Blake  were  the  trustees.  In  regard  to  the 
conveyance  being  subject  as  aforesaid,  that  if  it  mean  any  thing, 
must  mean,  subject  to  such  of  the  estates,  &c.  as  the  parties  could 
not  defeat  by  their  conveyance ;  or  it  might  mean,  subject  to  the 
power  which  they  had  before  exercised.  It  could  not  mean, 
subject  to  all  the  previous  estates,  &c. ;  because  Mr.  Bouverie 
and  the  trustees  actually  conveyed,  and  of  course  their  conveyance 
necessarily  passed,  the  estates  vested  in  them :  they  could  not 
have  joined  for  any  other  purpose. 

It  is  manifest  that  the  parties  intended,  as  far  as  they  could,  to 
defeat  the  old  settlement,  and  to  re-settle  the  estate.  It  is  clear 
that  the  parties  were  competent  to  release  the  powers  as  well  as 
to  convey  their  particular  estates.  And  it  would  defeat  their 
intention,  not  to  consider  the  settlement  of  1811  as  a  release  of 
the  powers. 

The  intention  of  the  parties  to  rest  the  title  as  far  as  tliey 
could  on  the  last  settlement,  is  manifest  from  several  circumstan- 
ces ;  viz. 

40* 


474 


SUGDEN   ON   POWERS. 


1.  Tlic  concurrence  of  the  trustees,  as  conveying 

[  *527  ]  parties,  which  *could  not  be  necessary  under  any  other 

view  of  the  case.     Their  concurrence  was  in  no  wise 

necessary,  if  the  old  powers  and  estate  in  them  were  intended  to 

be  left  untouched. 

2.  The  re-limitation  of  the  old  uses  which  had  not  been  affected 
by  the  recovery.  This  was  not  essential,  and  could  only  be  done 
because  the  parties  did  not  wish  to  have  again  recourse  to  the  old 
settlement. 

8.  The  insertion  of  a  new  power  of  sale  and  exchange.  The 
old  uses  not  affected  by  the  recovery,  were,  we  have  seen,  re-limit- 
ed. But  instead  of  repeating'  the  old  power  of  sale  and  exchange, 
a,neiv  one  is  introduced. 

Is  not  this  irresistible  evidence  of  the  intention  of  the  parties 
not  to  save  the  old  power  ?  Can  it  be  contended  that  the  powers 
which  would  be  co-extensive  could  be  intended  to  subsist  together, 
although  they  are  to  be  exercised  by  different  persons  ? 

The  old  power  might  be  exercised  by  the  trustees,  or  the  sur- 
vivor of  them,  or  the  heirs  or  assigns  of  such  survivor,  with  the 
consent  of  Mr.  and  Mrs.  Bouverie. 

The  neio  power  was  given  to  the  trustees,  and  the  survivor  of 
them,  and  the  executors,  administrators  and  assigns  of  such  sur- 
vivor, with  the  consent  of  Mr.  Bouverie  alone. 

Are  these  powers  which,  with  consistency,  can  ride  over  the 
same  estate  at  the  same  time  ?  If  the  trustees  were  dead,  the  heir 
of  the  survivor,  with  the  consent  of  Mr.  and  Mrs.  Bouverie,  and 
the  executor  and  administrator,  with  the  consent  of  Mr.  Bouverie, 
might  execute  the  two  powers  at  one  and  the  same  time.  Which 
would  prevail  ? 

The  intention  must  have  been  to  release  the  power ;  but  even 
.if  such  was  not  the  intention  of  the  parties,  the  deed  of  1811 
operated  as  a  release  of  the  powers. 

It  may  be  argued  that  the  power  was  appendant  as  to  the 
estate  of  the  trustees,  and  of  Mr.  Bouverie,  and  in  gross  as  to  the 
other  estates.  But  the  consequence  would  not  follow,  that  the 
release  of  1811  still  left  the  old  powers  in  esse,  so  far  as  they 
rode  over  the  estates  in  respect  of  which  they  were  collateral. 
This,  where  such  is  the  intention,  is  the  rule  in  regard  to  some 
powers.    For  example,  a  power  to  a  tenant  for  life  to  charge 


APPENDIX.  475 

100/.  on  the  estate  may  well  subsist  in  regard  to  the  estates  in 
remainder,  although  he  has  departed  with  his  life-estate.  But 
here  the  power  in  its  creation  was  intended  to  pass  the 
whole  fee.  When  the  donees  of  it  by  their  own  *act  [  *o28  ] 
prevented  themselves  from  exercising  it  to  that  extent, 
it  became  void  in  toto.  For  nothing  less  than  the  fee  could  be 
sold,  because  the  price  of  the  whole  fee  was  to  be  obtained  for  the 
estate,  which  was  to  be  laid  out  in  the  purchase  of  another  estate, 
to  be  settled  to  the  same  uses.  Of  course  the  estate  could  not  be 
sold  under  the  power  reserving  to  Mr.  Bouverie  his  life-estate. 
For  the  money  would  be  necessarily  laid  out  in  the  purchase  of 
other  estates  to  which  Mr.  Bouverie  would  also  be  entitled  for 
life  ;  and  the  trustees  could  not  at  once  settle  the  new  estate  on 
the  persons  in  remainder.  It  equally  follows,  that  if  the  donees 
of  the  power  have  departed  with  the  estate  in  possession  for  a 
particular  interest  which  they  cannot  afterwards  defeat,  they  can- 
not execute  the  powe'r  at  all.  For  it  no  longer  rides  over  the 
entire  interest  in  the  subject,  which  entire  interest,  and  which 
only,  was  to  be  sold  under  the  power. 
Our  case  is  distinguishable  from 

1.  A  lease  granted  by  a  tenant  for  life,  under  a  power  in  the 
settlement,  because  the  power  of  sale  in  its  creation  was  made 
subject  to  the  exercise  of  the  power  of  leasing. 

2.  An  interest  vested  in  another  person,  which  is  defeated  by 
the  execution  of  the  power  of  sale,  because  there  the  power  does 
convey  all  which  the  parties  intended  it  should. 

Here  the  parties  cannot  exercise  the  power  in  opposition  to 
their  own  conveyance  ;  and  they  cannot  exercise  the  power  for 
the  remaining  interest,  because  that  is  contrary  to  the  intention  of 
the  settlement  creating  the  power. 

Of  course  an  exercise  of  the  two  powers  cannot  make  a  good 
title. 

No.  4.(flf) 

Argument  in  favour  of  the  Destruction  of  a  Power  to  a  Tenant 
for  life  to  appoint  to  his  Children. 

In  a  recent  case  (1808,  in  which  year  the  first  edition  of  this 
(d)  Vide  supra,  \ol.  1,  p.  103. 


276  SUGDEN  ON  POWERS. 

work  was  published,)  A.,  tenant  for  life  (without  any  limitation 
to  trustees  to  preserve,)  remainder  to  his  children,  as  he  should 
appoint,  remainder  to  himself  in  tail,  remainder  to  liimself  in  foe, 
levied  a  fine  before  making  any  appointment,  and  the  title  was  ob- 
jected to  by  a  gentleman,  for  whose  opinion  I  cannot 
[  *529  ]  but  have  great  respect,  on  tlie  ground  *that  the  ])ower 
was  merely  a  power  of  selection,  and  therefore  could 
not  be  released  or  extinguished  by  fine. (I) 

It  must  be  admitted,  that  the  power  in  this  case  was  merely  a 
power  of  selection,  or  as  it  is  generally  termed,  a  power  of  specifi- 
cation ;  but  it  does  not  appear  to  follow  from  that  admission  that 
the  power  could  not  be  released  or  extinguished.  The  only 
ground  upon  which  it  can  be  contended  that  the  power  could  not 
be  extinguished  or  released  is,  that  it  was  a  power  simply  collate- 
ral when  the  donee  has  no  interest  whatever  in  the  estate,  and 
such  a  power  certainly  cannot  be  released  or  extinguished  either 
by  fine,  feoffment,  or  common  recovery. 

A  power  appendant,  at  least  as  to  the  life  estate,  it  certainly 
was  not ;  but  it  seems  to  have  been  a  power  in  gross,  which  al- 
though it  did  not  arise  out  of  the  estate  of  the  tenant  for  life, 
must  be  considered  as  exercisable  by  him  for  his  own  benefit,  and 

(I)  Mr.  Preston  says,  "  the  objects  of  a  power  are  the  persons  who  are  to  take 
under  the  exercise  of  the  power,  where  the  power  is  to  appoint  among  particular  per- 
sons, or  some  of  them,  as  in  the  instance  of  powers  in  favour  of  A.  B.  and  C,  D.,  or 
in  favour  of  a  class  of  persons,  as  children,  or  any  or  either  of  them.  The  power  of 
making  the  appointment  is  a  mere  authority,  but  the  right  of  taking  under  the  ap- 
pointment is  an  interest  or  benefit.  These  consequences  follow  :  the  person  to  whom 
the  power  is  given  may  exercise  the  power,  but  he  cannot  release  it,  nor,  according 
to  tke  more  prevailing  opinion  (an  opinion  combated  by  Mr.  Sugden,  who  is  support- 
ed by  some  gentleman  of  great  learning),  will  it  be  extinguished  by  fine,  &c.  But 
the  person  in  whose  favour  the  power  is  to  be  exercised  may  release  the  right  of  tak- 
ing under  the  power.  But"  he  adds,  "  some  powers  are  an  interest  in  the  person  to 
whom  they  are  given — as  powers  to  jointure — and  such  powers  may  be  released  or 
def€asanced."(flf)  In  another  passage  the  same  writer  observes,  "  that  mere  authori- 
ties, as  distinguished  from  interests,  are  releasable  only  by  the  person  for  whose  bene- 
fit they  are  to  be  exercised  and  not  by  the  person  to  whom  the  authorities  are  dele- 
gated. This  is  the  course  which  has  been  generally  observed,  which  has  been  sanc- 
tioned by  the  authority  of  several  gentlemen,  some  living  and  some  dead,  of  highly 
distinguished  eminence.  "  Mr.  Sugden,"  it  is  added,"  has  treated  some  powers,  for- 
merly considered  as  mere  authorities,  as  powers  of  selection  in  favour  of  children,  to 
be  releasable  by  the  the  donees  of  the  power." (6) 

(a)  Prest.  on  Abstr.  vol.  2,  261,  262. 

<6)  Prest.  on  Abstr.  vol.  3,  p.  399. 


APPENDIX.  4( ( 

not  as  a  mere  collateral  power.  A  power  to  a  tenant  for  life  to 
jointure  after  his  death  is  a  power  in  gross,  (Edwards  v.  Slater, 
Hard.  410.)  Now  what  is  a  power  to  jointure  but  a 
power  of  selection  or  specification  ?  *The  tenant  for  life  [  *530  ] 
selects  the  woman  whom  he  chooses  to  marry,  and  then 
appoints  that  after  his  death,  iclien  his  estate  has  ceased,  she  shall 
take  the  estate  for  life.  Here,  as  in  the  case  before  us,  the  estate 
appointed  cannot  take  effect  out  of  the  interest  of  the  donee  of 
the  power,  and  yet  a  power  of  jointuring,  like  every  other  power 
in  gi'oss,  may  be  extinguiehed  by  fine  (King  v.  Melling,  1  Ventr. 
225.)  Indeed  it  would  be  difficult  to  discover  any  real  distinc- 
tion between  a  power  of  jointuring  and  a  power  of  appointing  to 
children.  In  neither  case  is  the  donee  compellable  to  exercise 
his  power  ;  and,  in  each  case,  the  power  is  annexed  in  privity  to 
his  estate  for  life,  and  he  has  an  interest  arising  from  the  exercise 
of  his  power  by  the  benefits  it  enables  him  to  bestow.  In  Edwards 
V.  Slater  (Hard.  410,)-  a  power  to  a  tenant  for  life  to  create  a 
lease  for  tliirty-onc  years,  to  commence  after  his  death,  was  held 
by  Hale,  Chief  Baron,  and  Baron  Turner,  to  be  power  in  gross, 
and  to  be  barrable  by  a  fine  or  feoffment.  Lord  Chief  Baron 
Hale  said,  that  Avhere  the  power  docs  not  fall  within  the  compass 
of  the  estate,  as  where  the  tenant  for  life  has  a  power  to  make  an 
estate  which  is  not  to  begin  till  after  his  own  estate  is  determined, 
such  power  is  not  appendant  or  annexed  to  the  land,  but  it  is  a 
power  in  gross,  because  the  estate  for  life  has  no  concern  in  it ; 
and  yet  such  a  power  (he  added)  may,  by  apt  words,  be  destroy- 
ed by  release,  or  by  fine  or  feoffment,  which  carry  away  and  in- 
clude all  things  relating  to  the  land.  This  case  seems  to  govern 
tlic  point  before  us.  Sir  Matthew  Hale's  defiuition  of  a  power  in 
gross  clearly  embraces  a  power  to  a  tenant  for  life  to  appoint  the 
estate  amongst  his  children  after  his  death,  and  the  cases  are  not 
easily  distinguishable. 

The  doctrine  that  powers  of  this  nature  cannot  be  released  or 
extinguished  is  by  no  means  new.  It  has  been  frequently  urged, 
but  without  success  ;  and,  in  the  very  case  of  Edwards  v.  Slater, 
Baron  Rainsford  held  the  power  to  create  the  term  to  be  a  power 
simply  collateral ;  but  this  Lord  Cliief  Baron  Hale,  and  Baron 
Turner  clearly  over-ruhnl,  which  makes  the  case  as  strong  an 
authority  as  can  posi>ibly  be  wi^^hed  for. 


478  SUGDEN  ON  POWERS. 

The  opinion  under  discussion  owes  its  origin,  perhaps,  to  powers 
in  gross  being  frcc^uently  termed  powers  collateral ;  and  the  wore 
"  collatcrar'  being  considered  as  meaning  5iwi/?/// collateral.  Thus 
in  Saville  v.  Blacket  (1  P.  Wms.  777),  a  power  to  tenant  for  lif(^ 
to  charge  money  on  the  estate  was  called  by  the  Lord  Chancellor 
a  collateral  power  ;  and  it  is  observed  in  a  modern  put 
[  *531  ]  lication  of  much  *mcrit   (1   Saunders  on  Uses,  1G4)] 
"  That  the  power  in  that  case  is  erroneously  called  col 
lateral,  whereas,  according  to  Lord  Hale's  definition,  it  was  ccrJ 
tainly  in  gross."     The  observation,  that  the  power  in  questior 
was  a  power  in  gross,  is  correct ;  but  it  was  not  erroneously  callj 
ed  collateral,  for  a  power  in  gross,  and  a  power  collateral,)  is  one' 
and  the  same  thing. 

There  is,  however,  still  an  authority  behind,  which  may  per- 
haps bo  adduced  against  these  observations.  The  case  to  which 
I  allude  is  Thomlinson  v.  Dighton,  reported  in  many  books, 
which  was  a  devise  to  A.  for  life,  and  then  to  be  at  her  disposal, 
provided  that  she  disposed  of  the  same  to  any  of  her  children 
after  her  death.  She  executed  the  power  by  lease  and  release, 
and  a  fine  ;  and  a  question  arose  as  to  the  due  execution  of  the 
power.  According  to  the  report  in  Salkeld  (1  Salk.  239),  two 
questions  were  made,  the  second  of  which  was,  whether  this  power 
could  be  construed  as  a  power  appendant  to  the  estate  for  life, 
so  as  by  the  destroying  of  that  it  might  be  destroyed  or  extin- 
guished, or  a  collateral  one.  Powell,  Justice,  said  this  was  not 
a  power  appendant  or  appurtenant,  nor  was  it  in  the  nature  of 
an  emolument  to  the  estate  like  a  lease  for  life,  with  a  power  to 
make  leases  for  twenty-one  years,  for  that  effects  the  estate  for 
life,  and  is  concurrent  with  it,  and  has  its  being  and  continuance, 
at  least  for  some  part,  out  of  it ;  but  this  power  arises  after  the 
estate,  and  has  its  effect  upon  another  interest,  so  that  the  estate 
for  life  is  perfect  without  it,  and  in  no  wise  altered  or  affected  by 
the  execution  of  it. 

Upon  an  attentive  consideration  of  this  case,  it  will  appear  that 
the  question  was,  whether  the  power  was  appendant,  or  in  gross  ; 
the  word  "  collateral"  being,  as  we  have  seen,  sometimes  used  as 
synonymous  to  the  words  "  in  gross."  That  this  meaning  was 
given  to  the  word  in  the  case  before  us  is  proved  by  Mr.  Justice 
Powell's  argument,  which  is  to  the  same  effect  as  Hale's  defini- 


APPENDIX.  479 

tion  of  a  power  in  gross  in  tlie  case  of  Edwards  v.  Slater.  Mr. 
Justice  Powell's  opiufou  certainly  was,  that  the  power  was  a 
power  in  gross ;  and  it  seems  so  to  have  been  considered  by  Mr. 
Pecre  Williams,  who,  in  his  admirable"  argument  in  that  case  (1 
P.  Wms.  p.  149,)  in  answer  to  an  objection  that  the  power  was 
destroyed,  admitted  that  if  the  fine  had  been  levied  before  the 
lease  and  release,  it  would  have  operated  as  an  extinguishment  of 
the  power.  For  he  contended,  that  as  the  fine  came  after  tlie  re- 
lease it  came  too  late  to  do  any  hurt ;  and  although  he  afterwards 
said,  that  the  power  seemed  collateral,  yet  ho  did  not  rely  upon 
that  position,  and  cited  no  other  authority  for  it  than 
the  *old  case  of  a  power  to  executors  to  sell,  which  is  [  *oo2  ] 
clearly  a  power  simply  collateral.  Parker,  Chief  Jus- 
tice, in  delivering  the  resolution  of  the  court,  said,  that  as  to  the 
first  objection,  that  the  power  was  extinguished  by  the  fine,  it 
might  be  answered,  that  if  the  power  was  well  executed  it  was 
executed  by  the  deed  which  was  antecedent  to  the  fine,  and  there- 
fore it  was  impossible  for  the  power  to  be  extinguished  by  the 
fine  (10  Mod.  72.)  This  appears  to  be  a  clear  admission  by  the 
court,  that  the  power  might  have  been  destroyed  by  fine  ;  for 
otherwise  the  answer  would  have  been,  not  that  the  fine  came  too 
late,  but  that  the  power  could  not  have  been  extinguished  by  fine. 

The  late  Mr.  Powell,  however,  in  his  treatise  (Powell  on  Pow. 
p.  9.  33)  of  Powers,  has  considered  the  power  in  this  case  as  a 
power  simply  collateral.  He  states  broadly,  that  the  Court  were 
unanimously  of  opinion,  that  the  wife  had,  mider  the  will,  an  es- 
tate for  life  ort/y,  with  a  power  of  specification  simply  collateral. 

If  the  learned  reader  should  think  that  in  Thomlinson  v.  Digh- 
ton  the  power  was  deemed  a  power  in  gross,  that  case  alone  must 
have  considerable  influence  on  the  question  under  consideration, 
and,  indeed,  the  very  system  of  powers  must  be  overturned,  to 
hold  the  power  simply  collateral.  Should  it  be  determined  that 
a  power  of  this  nature  cannot  be  barred  by  a  fine,  the  intention  of 
many  settlements  must  inevitable  be  defeated.  If  an  estate  be 
limited  to  tlie  children  of  the  marriage,  as  the  parent  shall  ap- 
point by  will,  or  to  the  children  Uvin<^  at  the  parents  decease^  as 
he  shall  appoint  by  deed  or  will,  with  a  remainder,  in  either  of 
'these  cases,  to  the  children  in  fee,  in  both  these  cases  no  effectual 
settlement  can  be  made  upon,  or  by  a  child,  until  the  parent's 


480  SUGDEN   ON  POWERS. 

death.  I  have  put  the  case  of  a  remainder  in  fee  to  the  children 
in  deiault  of  appointment,  because  it  has  bSen  contended,  that  al- 
though the  power  is  simply  collateral,  yet  where  the  children  are 
tenants  in  tail,  a  recovery  suffered  by  them  will  over-reach  and 
destroy  the  power  of  ap})ointment.  The  case  has  been  considered 
similar  to  that  of  Page  and  Hay  ward  (Page  v.  Hay  ward.  Pig. 
App.  Comm.  Rec.  176  ;  2  Salk.  570.)  To  this  opinion  the 
Author  himself  once  inclined,  but  further  consideration  has  in- 
duced him  to  consider  the  point  very  doubtful.  For  in  Page  v, 
Hayward,  although  the  words  expressed  a  condition,  yet  they 
were  construed  to  be  a  limitation  :  and  therefore  it  is  the  common 
case  of  a  vested  estate-tail,  with  a  limitation  over  in  a  certain 
event,  in  which  case  it  is  quite  clear  that  a  recovery  suffered  be- 
fore the  happening  of  the  event  will  defeat  the  limita- 
[  *533  ]  tions  over.     It  is  like  the  case  put  by  Hale,  *Chief 

Justice,  in  Benson  v.  Hudson  (1  Mod.  188  ;  2  Lev.  26 
and  see  White  v.  West,  Cro.  Eliz.  792,)  of  a  tenant  in  tail,  with 
a  limitation  so  long  as  such  a  tree  shall  stand  ;  and  he  held  that 
a  common  recovery  would  bar  that  limitation.  But  in  our  case 
the  question  would  be,  whether,  during  the  life  of  the  donee  of 
the  power,  the  estates  to  be  created  under  the  power  would  not 
be  considered  a  charge  upon  the  estate-tail.  Every  purpose  of 
such  a  power  might,  under  a  contrary  construction,  be  sometimes 
defeated.  Suppose  a  father,  tenant  for  life,  with  an  exclusive 
power  of  appointment  to  his  children,  to  sell  his  life-estate,  we 
have  seen  that  he  might  still  execute  his  power  :  but  if  the  pur- 
chaser were  to  join  with  tlie  children  in  suffering  a  recovery,  the 
parent  would,  according  to  this  doctrine,  be  deprived  of  the  right 
for  whicli  he  stipulated,  by  the  settlement,  of  selecting  the  child 
to  inherit  his  estate.  What  would  be  the  cbnsequence  of  this 
doctrine  if  A.  were  tenant  for  life,  remainder  to  B.  for  life,  re- 
mainder to  his  children  as  he  should  appoint,  remainder  to  his 
first  and  other  sons  in  tail ;  and  upon  a  child  coming  of  age.  A., 
without  tlie  concurrence  of  B.,  were  to  join  with  the  child  in  suf- 
fering a  recovery  ?  Would  not  B.,  the  father's,  power  be  de- 
stroyed ?  There  is  a  wide  difference  between  the  donee  of  the 
power  having  ability  by  a  recovery  to  destroy  the  power,  and 
the  remainder-man  in  tail  having  the  same  right.  Again,  it  has 
been  contended,  that  although  the  power  cannot  be  extinguished, 


APPENDIX.  481 

yet  it  may  be  released  to  the  remainder-man  in  exclusion  of  the 
objects  of  the  power,  as  the  donee  is  equally  a  trustee  for  them  all. 
This  opinion,  however,  assumes  that  the  donee  is  a  trustee  of  the 
power,  a  doctrine  which  it  would  be  difficult  to  support ;  and 
even  should  it  be  proved,  yet  ulterior  questions  would  arise.  It 
might  be  questioned,  whether,  as  he  was- a  trustee,  he  could  bind 
his  discretion  during  his  life  ;  and  whether  he  would  not  be  guilty 
of  a  breach  of  trust  in  preferring  the  remainder-man  to  the  imme- 
diate objects  of  the  power.  But  it  really  seems  so  clear  upon 
principle  as  well  as  authority,  that  the  power  is  a  power  in  gross, 
that  it  is  not  thought  necessary  to  pursue  our  inquiries  on  points 
arising  out  of  the  doctrine  that  the  power  is  simply  collateral. 
The  objection  is  now  (1815)  daily  losing  ground.  (I) 

*No.  5.  [  *534  1 

Hele  V.  Bond.(^e') 

IWi  and  I'oth  March,  1(384. — By  Lease  and  Release,  and  by 
line,  Sampson  Hele  made  a  voluntary  settlement.  In  the  release 
was  contained  the  following  proviso :  "  That  if  the  said  Sampson 
Hele  shall  at  any  time  or  times  hereafter  during  his  life  be  minded 
to  alter  and  make  void  the  uses  limited  to  the  sons  of  Sampson 
Hele,  the  younger,  and  their  issue  male,  and  to  his  own  issue 
male,  and  shall  at  any  time,  or  from  time  to  time  during  his  life, 
l^y  any  instrument  or  writin-g,  by  him  to  be  sealed,  and  with  his 
own  hand  subscribed,  in  the  presence  of  two  or  more  credible 
witnesses,  who  shall  write  their  names  as  witnesses  thereto,  sig- 
nify and  declare  the  same,  and  thereby,  or  by  any  other  wi-iting 
or  writings  to  be  by  him  sealed  and  subscribed,  and  witnessed  as 
aforesaid,  shall  limit,  declare,  or  appoint  the  use  of  the  premises 
to  any  other  persons  in  any  other  manner  than  is  before  limited, 
and  for  any  estate  or  estates  in  fee-simple,  fee-tail,  for  life,  or  any 

» 

(e)  Vide  supra,  vol.  1.  p.  119.  449. 

(I)  lu  Mr.  Preston's  book  on  Abstracts,  vol.  1,  p.  398,  published  in  1818,  the 
subject  is  discussed;  and  it  is  added,  that  the  more  prevailing  opinion  now  is,  that 
the  estate-tail  is  charged  with  the  power, ^nd  with  the  estates  to  arise  under  the  exe- 
cution of  the  power,  and  that  the  power,  while  in  fieri,  cannot  be  barred  by  the 
i-ecovery  of  the  owner  of  the  estate-tail. 

Vol.  II.  41 


482  SUGDEN  ON  POWERS. 

number  of  years  in  possession,  &c.  And  any  such  new  limitation 
or  appointment  by  any  other  writing,  in  like  manner  to  be  sealed 
and  subscribed  and  witnessed  from  time  to  time,  sliall  and  may 
revoke  and  alter,  and  also  make  any  other  limitation  of  the 
premises  by  any  other  writing  in  like  manner  to  be  sealed  and 
subscribed  to  any  other  persons,  or  in  any  otlier  manner,  or  for 
any  other  estates  in  possession,  &c.,  and  so  from  time  to  time,  and 
so  often  as  tlie  said  Sampson  Hele,  the  elder,  shall  think  fit." 
Then  the  fine  should  enure  to  the  new  uses. 

oth  Oct.  1G87. — Sampson  Hele,  senior,  by  deed-poll,  setting 
forth  m  h(sc  verba,  his  said  powers  to  revoke  and  limit  new  uses, 
and  such  new  uses  to  revoke  again,  and  limit  other,  and  referring 
to  such  powers,  did,  according  to  the  said  powers,  revoke  the 
estates  authorized  to  be  revoked,  and  pursuant  to  the  same  poivers 
limited  new  uses.    There  was  no  power  of  revocation  in  this  deed. 

11^//  Oct.  170-4. — Sampson  Hele,  senior,  setting  forth  in  like 

manner  his  powers  in  the  first  settlement,  revoked  the 

[  *53r)  ]  uses  of  the  *settlement,  and  also  those  of  the  deed-poll, 

and  by  virtue  of  his  power  in  the  settlement,  and  of  all 

other  powers,  limited  new  uses. 

2)d  Feb.  1712. — The  cause  to  try  the  validity  of  the  last  revo- 
cation came  to  be  heard  before  Lord  Cliancellor  Harcourt,  wlien 
several  authorities  being  cited,  his  Lordship  took  time  to  consider 
thereof;  and  a  few  days  afterwards  he  declared  it  was  a  new 
case,  and  that  he  did  not*  find  any  authority  to  warrant  such  a 
revocation,  nor  was  there  any  instance  in  any  of  the  authorities 
insisted  on  of  such  power  of  revocation  ;  but  he  referred  it  to  the 
Judges  of  B.  R.  for  their  opinion  : 

Whether  the  uses  limited  by  the  deed-poll  of  5th  October. 

1G87,  were  well  revoked  l)y  the  deed  of  11th  October, 

1704,  by  virtue  of  the  power  of  revocation  contained  in 

.  the  deed  of  16th   March,  1084,  or  by  the  recital  of  that 

power  in  the  deed-poll  of  1687  ? 

\Oth  July,  1713.-«-Lord  C.  J.  Parker,  Powys,  and  E3TC, 
Justices,  certified  that  they,  with  the  late  Mr.  J.  Powell,  heard 
counsel  upon  the  question,  and  were  all  four  of  opinion  that  the 
power  of  revocation  and  limitation  of  new  uses  in  the  deed  of 
March,  1684,  was  fully  executed  by  the  deed-poll  of  1687  ;  and 
that  the  further  power  in  the  deed  of  March,  1584,  to  revoke  any 


APPENDIX. 


483 


new  limitation  or  appointment,  was  void  in  the  creation  as  to 
such  uses  as  should  afterwards  be  newly  limited,  unless  a  power 
of  revocation  should  be  again  expressly  reserved,  which  they 
thought  was  not  done  by  the  recital  of  the  powers  in  the  deed-poll 
of  1687,  and  consequently  that  the  uses  limited  in  the  deed-poll 
were  not  revoked  by  the  deed  of  1704,  and  that  all  four  were 
ready  to  have  given  their  opinion  accordingly ;  but  some  of  the 
counsel  for  the  defendant  desiring  to  be  further  heard,  they  three 
(since  the  death  of  Justice  Powell)  had  heard  counsel  again,  but 
saw  no  reason  to  alter  their  opinion, 

18lh  July,  1713. — Lord  Harcourt  concurred  in  the  opinion  of 
the  Judges,  and  decreed  accordingly. 

1717. — From  this  decree  there  was  an  appeal.  The  reasons 
for  the  appellant  were  signed  by  Northey,  Raymond,  and  Jodrell ; 
and  they  insisted,  1.  That  the  original  power  reserved  to  revoke 
all  new  uses  was  valid,  for  the  intent  of  the  party  ought  to  be  the 
guide  in  these  cases ;  and  this  intent  was  as  fully  expressed  by 
the  proviso  precedent  to  the  uses  in  the  deed  of  1687,  as  it  could 
ever  be  by  any  proviso  subsequent,  which  had  there  been,  it  was 
admitted  the  uses  created  by  the  deed  of  1704  would 
have  l)een  good.  And  2,  That  the  ^original  powers  [  *536  ] 
were  only  partially  executed  by  the  deed-poll  of  1687  ; 
and  the  further  power  to  revoke  such  new  uses  was  still  subsist- 
ing, and  such  an  original  existing  power  had  never  been  deter- 
mined, before  this  to  be  void.  On  the  other  hand,  the  only  legal 
reason  insisted  uj)on  by  Powys  and  Cowper,  who  signed  the  rea- 
sons for  the  Respondent,  was,  that  if  such  ambulatory  and  endless 
powers  of  revocation  (powers  within  powers,  and  without  prece- 
dent in  the  law)  were  allowed,  purchasers,  and  marriage  settle- 
ments, with  ease  might  be  defeated,  and  titles  be  rendered  preca- 
rious and  uncertain. 

This  case  was  ably  argued  in  the  House  of  Lords  by  i^lr  Thomas 
Powys  and  Sir  Peter  King  for  the  Respondents,  and  l)y  Sir  Ed- 
ward Northey  for  the  Appellant. 

Both  sides  insisted  upon  the  Resolution  in  Digges's  case,  1  Co. 
173,  as  authorities  in  their  favour. 

For  the  Respondent,  it  was  argued,  that  the  power  could  be 
exercised  but  once.  And  they  likened  powers  of  this  nature  to 
conditions  at  common  law ;  and  that  at  common  law  such  a  con- 


484 


SUGDEN   ON   POWERS. 


tinuing  condition  as  tliis  could  not  liavc  been  created.  They 
enlarged  upon  the  endless  contests  which  a  contrary  doctrine 
would  introduce,  and  the  dangers  and  frauds  to  which  it  would 
subject  purchasers,  whilst  on  the  other  hand  it  was  easy  to  add  a 
power  of  revocation  wliere  such  was  the  intention.  And  they 
moreover  insisted,  that  as  a  power  of  revocation  may  be  reserved 
toties  quotics,  this  power  was  only  tantamount  to  the  usual  power 
of  revocation ;  and  being  once  fully  executed  without  a  new  power 
reserved,  vf^'dsfiinrtus  oJficiL 

On  l)ehalf  of  the  Appellant,  it  was  argued  that  as  the  other 
party  admitted  that  a  power  of  revocation  toties  quoties  might  be 
newly  reserved,  it  was  impossible  to  contend  that  thi^  power, 
which  in  its  first  creation  enabled  such  revocation  toties  quoties^ 
was  invalid.  In  the  cases  which  had  occurred  the  power  was 
single,  and  it  was  therefore  absolutely  necessary  to  reserve  a  new 
power  ;  but  in  this  case  the  first  power  prevented  the  necessity 
of  any  future  power. 

It  was  more  consonant  to  the  rule  of  law  to  limit  all  the  uses 
in  the  first  deed  declaring  the  use  of  the  fine,  (9  Co.  9,)  and  this 
was  no  greater  stretch  than  a  power  to  appoint  by  will ;  in  which 
case  the  last  will,  although  there  were  twenty,  would  prevail,  or 
a  power  to  appoint  by  the  last  deed  the  donee  should  execute  in 
his  lifetime.  It  was  in  effect  a  declaration  that  the  last  uses  he 
should  declare  only  should  stand. 

In  answer  to  the  other  objections,  it  was  said,  that 
[  *537  ]  the  power  was  *only  for  the  life  of  the  owner,  and  so 
uses  could  not  be  limited  in  infinitum ;  nor  was  it  dan- 
gerous to  purchasers,  as  the  future  power  would  be  fraudulent 
against  them,  and  every  purchaser  would  take  a  conveyance  of 
,  the  interest,  as  well  as  a  limitation  under  the  power,  which  would 
extinguish  the  future  power. 

But  even  admitting  the  weight  of  this  objection,  it  was  forcibly 
argued,  that  the  recital  of  the  powers  in  the  deed  of  1687  was 
tantamount  to  a  declaration  of  his  intention  that  such  powers 
should  continue,  and  therefore  amounted  to  a  reservation. 

The  decree  however  was  affirmed  in  the  House  of  Lords.  The 
journals  of  the  House  of  Lords  state,  that  after  hearing  the 
Judges  of  the  Court  of  King's  Bench,  as  to  the  matter  of  law, 
icho  continued  of  the  same  opinion  as  was  certified  by  them  to 


APPENDIX.  '  48o 

the  Court  of  Chancery,  and  also  hearing  all  the  other  Judges, 
who  coucurred  in  opinion  with  the  Judges  of  the  Court  of  King's 
Bench,  tlio  appeal  was  dismissed,  and  the  decree  affirmed. (/) 


No.  6. 
Oftlie  Execution  of  Poivers  by  Infants  under  the  old  Laic.{g) 

1.  Dyer,  in  his  reading  on  the  statute  of  wills,  says,  that  if  a 
man  makes  his  will,  and  wills  that  J.  S.,  who  is  within  age,  shall 
have  the  disposition  of  his  land,  that  is  good.  The  same  law  is 
where  a  woman  covert  hath  such  authority. 

2.  And  in  Grange  v.  Tiving,(/i)  Bridgeman,  C.  J.,  laid  it 
down  that  in  the  case  of  a  hare  power  or  authority,  where  an 
infant  or  feme  covert  is  used  but  as  an  instrument  or  conduit  pipe 
by  another  who  hath  no  such  disability,  though  upon  the  act  an 
alteration  or  transferring  of  an  estate  do 'follow,  yet  the  law 
looks  upon  him  from  whom  that  power  or  autliority  is  derived, 
not  upon  the  weakness  of  the  person  acting  by  it,  and  therefore 
an  infant  may,  as  an  attorney,  give  livery  upon  a  feoflment ;  so 
may  a  feme  covert  though  it  be  to  her  own  husband,  so  if  cestui 
que  use,  before  the  statute,  desired  his  executors  should  sell  his 
land,  a  feme  covert,  or  infant  executor,  so  he  be  of  age  to  be  ex- 
ecutor, may  sell  his  laud,  and  if  he  devise  that  his  wife  shall  sell 
his  land,  though  she  after  take  a  husband,  and  so  hath  altered 
her  condition,  sh^  may  sell  the  land,  and  she  may  sell 

it  to  lier  'husband  ;  for  in  these  cases  the  wife  or  infant  [  *oo8  ] 
were  but  instruments,  the  estate  moved  from  him,  and 
it  shall  be  said  the  act  of  the  devisor,  or  him  who  gave  this  au- 
tliority. This  was  upon  the  statute  of  wills,  lie  then  distin- 
guished powers  raised  ))y  the  statute  of  uses,  but  licld  that  a  bare 
collateral  power  was  like  to  an  authority  at  common  law.  If  A. 
make  a  conveyance  to  uses,  with  power  to  B.  to  revoke,  who  had 
nothing  to  do  with  the  land  as  owner,  nor  hath  any  thing  in  it 
by  the  limitation  of  the  uses,  this  power  is  collateral  to  the  estate 

(/)  .Tourn.  Dom.  Proc.  0  May,  1717. 
(g)  Vide  supra,  p.  211. 
(h)  Bridg.  107. 

41* 


48G  SUGDEN   ON  POWERS. 

in  the  land,  and  ]J.,  wlK'tlier  iiifaut  or  feme  covert,  might  revoke, 
as  he  conceived ;  and  he  thought  the  law  was  the  same  if  it  were 
a  collateral  power  to  B.,  or  his  heirs,  who  had  nothing  to  do 
with  the  land,  to  revoke  by  writing  under  his  or  their  hands. 
The  heir,  though  he  had  been  a  disseisor,  and  made  a  feoffment, 
or  had  released,  or  tliough  he  were  an  infant,  might  revoke,  be- 
cause it  was  a  bare  power  to  be  executed  by  the  heir,  not  result- 
ing from  an  interest  in  him  or  his  ancestor,  or  tending  to  preju- 
dice him  in  interest. 

3.  And  it  has  been  thought  that  an  infant  may  execute  even 
powers  appendant  and  in  gross.(I)  The  case  of  HoUingshead  v. 
Hollingshead(i)  is,  as  reported,  an  authority  that  way.  An  in- 
fant, tenant  for  life,  with  a  power  of  jointuring,  upon  his  mar- 
riage covenanted  to  settle  lands  on  his  wife,  and  afterwards  died 
without  having  made  any  jointure,  and  equity  made  good  the  join- 
ture, which,  as  the  facts  are  stated,  could  only  be  on  the  princi- 
ple that  the  infant  had  a  disposing  power.  But  Lord  Alvanley, 
when  Master  of  the  Rolls,  seemed  to  think  that  the  infant  had 
done  some  act  after  he  came  of  age  to  confirm  the  jointure. (/t') 
And  in  a  case  at  the  Rolls  in  the  year  1738,  the  Master  of  the 
Bolls  said,  that  the  case  of  HoUingshead  v.   HoUingshead  was  an 

idle  case  and  not  law.(/)(n)  In  the  great  case  of 
[  *539  ]  *Hearle  v.    Greenbank,(/«)   both  the  counsel  and  the 

court  said  repeatedly,  that  there  was  no  case  in  which 
it  had  been  decided  that  an  infant  could  execute  a  power  append- 
ant or  in  gross.  Lord  Hardwicke  said,  that  the  applying  for 
several  private  acts  of  parliament  to  enable  infants  to  execute 
powers  given  to  them,  showed  the  sense  of  mankind  in  that  re- 

"'  (i)  2  P.  Wins.  220;  1  Stra.  GOJ,  Gilb.  Eq.  Rep.  1G8;  4  Bro.  C.  C.  4GG,  cited; 
'  see  Lady  Hooke  v.  Grofe,  5  Vin.  Abr.  293,  pi.  •40. 

(A:)  See  4  Bro.  C.  C.  46G. 

(/)  Coltoa  V.  Ho3kin9,  Roll8.  21  March,  1738;  16  Vin.  Abr.  486,  pi.  3;  and  see 
Lord  Kilmurry  v.  Dr.  Grey,  2  P.  Wms.  671,  cited:  explained  in  3  Atk.  713. 

(;n)  3  Atk.  695;  1  Ves.  298. 

(I)  An  infant  may  also  execute  a  power  coupled  with  an  interest,  if  his  infancy 
be  dispensed  witli;  or  if,  from  the  nature  of  the  power,  it  be  evident  that  it  was  in 
the  contemplation  of  the  author  of  the  power  that  it  should  be  exercised  during  mi- 
nority.    1  Prest.  Abs.  C2G. 

(II)  I  have  not  been  able  to  find  any  case  on  this  point  in  Reg.  Lib.  The  point 
probably  arose  incidentally  in  a  case  in  Colton  and  Newland,  which  appears  from 
the  registrar's  book  to  have  been  before  the  Master  of  the  Rolls  in  Hilary  Term,  1738. 


APPENDIX.  487 

spect ;  and  lie  held,  decidedly,  that  a  power  to  a  feme  covert,  an 
infant,  to  appoint  an  estate,  notwithstanding  her  coverture,  did 
not  authorize  her  to  appoint  the  estate  during  her  infancy,  as  it 
was  a  power  to  be  exercised  over  her  own  inheritance.  Lord  Hard- 
wicke,  in  this  case,  showed  not  only  that  the  power  could  not  be 
legally  executed  during  the  donee's  infancy,  but  that  the  testator 
did  not  intend  that  it  should  be,  as  he  gave  it  expressly  during 
coverture,  but  not  during  infancy,  and  expressio  tinius  est  exclusio 
allerius.  From  this  it  has  been  inferred,  that  Lord  Hardwickc 
was  of  opinion  that  such  a  power  might,  by  express  words,  be 
given  during  infancy  ;  but  it  is  manifest  that  he  merely  intended 
to  show,  that,  even  if  such  was  the  doctrine,  it  would  not  apply 
to  the  case  before  him.  It  would  be  a  bold  decision,  that  an  in- 
fant may  have  a  power  of  disposition  over  an  estate  through  the 
medium  of  the  statute  of  uses.  Before  the  statute,  it  is  clear  that 
an  infant  could  not  alien  a  use  limited  to  him,  that  is,  could  not 
direct  his  trustees  to  convey  the  estate  to  a  third  person.  In  that 
respect  equity  followed  the  law.  Now  the  statute  only  operates 
upon  what  were  uses  at  the  time  it  passed.  A  power  not  simply 
collateral  is  a  beneficial  right  to  direct  the  trustee  to  convey  the 
estate  to  whom  you  shall  appoint.  This  direction  an  infant  can- 
not give  by  reason  of  his  non-age.  Therefore,  the  appointee 
never  gains  a  use,  or  equitable  right,  upon  which  the  statute  can 
operate.  The  law  is  already  carried  to  its  utmost  limit  in  the 
power  given  to  femes  covert,  and  the  disability  of  an  infant  is 
much  stronger  than  that  of  a  married  woman  ;  and  a  married 
woman,  before  the  statute,  might  have  directed  the  use,  if  em- 
{)Owercd  to  do  so.  In  a  very  recent  case,(M)  Sir  John  Leach  held 
at  tlie  Rolls,  that  an  infant  female  had  no  disposing  power  over 
personal  estate  given  to  her  separate  use,  although  a  settlement 
of  it  was  made  by  the  direction  of  the  court.  He  said,  that  by 
the  rule  of  law  she  had  no  power  of  disposition  during  her  minor- 
ity, and  the  court  had,  he  thought,  no  jurisdiction  to 
give  her  such  power  ;  and  he  was  *not  aware  that  any  [  *540  ] 
case  was  to  be  found  in  which  the  court  had  attempted 
to  exercise  such  a  jurisdiction. 

4.  It  is  not  till  recently  that  the  case  of  Grange  v.  Tiving, 

(n)  Simsonv.  Jones,  2  Russ.  &  Myl.  865. 


488  SUGDEN   ON   POWERS. 

before  Lord  C.  J.  Bridgman  was  known  to  the  profession. (o)  A 
settlement  was  made  by  a  eovenant  to  stand  seised  to  the  use  of 
the  settlor  for  life,  remainder  to  his  wife  in  fee,  with  a  })Ower  for 
him,  or  any  of  the  heirs  of  his  body,  to  revoke  the  uses  and  limit 
new  ones.  The  settlor  died,  leaving  an  only  daughter,  and  she, 
whilst  an  infant  and  married,  exercised  tlie  power  of  revoking  the 
use  to  the  wife,  and  limiting  the  fee  to  herself.  The  C.  J.  held, 
that  the  two  powers  to  revoke  and  limit  new  uses  were  distinct 
powers,  and  that  she  might  revoke,  notwithstanding  her  coverture 
and  infancy,  but  could  not,  during  her  infancy,  exercise  the  power 
of  limiting  new  uses.  He  said,  that  if  a  man  make  a  feoffment  to 
the  immediate  use  of  J.  S.  for  his  life,  who  is  then  nineteen  or 
twenty  years  old,  and  so  of  age  of  discretion,  or  to  the  use  of 
Alice  Stile,  who  is  then  a  feme  covert,  with  power  to  make  leases 
for  three  lives,  ttc,  he  would  not  determine  whether  a  lease 
according  to  that  power,  executed  by  that  infant,  be  good  or  not ; 
for  without  all  doubt  it  might  have  been  so  limited,  by  express 
words  of  the  power,  "  that  he  or  she  might  make  such  leases 
whether  he  or  she  were  within  age  or  of  full  age,"  and  then  it 
had  clearly  been  good :  for  if  he  who  was  owner  of  the  estate  had 
no  disability  upon  him,  he  might  make  use  of  any  hand,  liow  weak 
soever,  to  reach  out  that  estate.  But  the  question  will  be,  in  that 
case,  whether  he  who  made  that  conveyance,  by  naming  the  person 
whom  he  then  knew  to  be  an  infant,  and  giving  an  immediate 
estate  and  an  independent  power  to  make  leases  without  restric- 
tion in  point  of  time,  did  not  intend,  that  notwithstanding  that 
incapacity,  the  infant  should  make  such  leases,  and  so  might 
implicitly  intend  what  lie  might  have  expressed,  that  they  should 
be  good  leases,  whether  made  under  that  disability  or  not.  If  I 
make  a  conveyance  to  the  use  of  myself  for  life,  remainder  to  my 
first  son  to  be  begotten,  with  a  power  of  making  leases  to  myself, 
and  after  to  my  son  when  he  comes  to  be  in  possession  if  I  die, 
my  son  at  the  age  of  twenty  years,  yet  he  held,  that  he  could  not 
execute  this  power  of  leasing  till  he  came  to  twenty-one.  He 
then  compared  powers  of  revocation  to  conditions,  and  quoted  the 
cases  u}>on  conditions  upon  which  he  relied.  He  thought  such  a 
■condition  upon  a  feoffment,  "  that  if  he,  or  the  heir  of  his  body, 
signed,  sealed,  and  delivered"  such  a  waiting,  then  the  feoffment 

(o)  Bridg.  107,  by  Ban. 


APPENDIX.  489 

should  be  void,  might  be  *pcrformed  by  the  heirs  of  his  [  *541  ] 
body,  notwithstanding  infancy  or  coverture,  for  though 
the  signing,  sealing  and  delivering  were  acts  individual  and 
inseparable  from  the  person,  yet  they  were  but  external,  corporeal 
and  mechanic  acts.  There  was  nothing  required  but  the  thing 
done,  nothing,  in  the  performance  of  the  condition,  that  of  itself 
required  any  other  concurrence  of  judgment  Ijut  such  as  was 
requisite  to  the  natural  efficiency  of  the  act,  as  in  the  case  if  the 
conditions  were  if  he  in  person  tendered  a  ring,  though  the  act 
were  personal,  yet  nothing  more  of  skill  or  understanding  was 
required  to  it  than  what  was  necessary  to  the  effecting  that  act, 
that  is,  the  tender  of  the  ring.  But  if  an  act  of  judgment  was 
required,  an  infant  could  not,  he  thought,  revoke.  He  then  relied 
upon  the  general  intent  of  the  settlor ;  for  if  an  infant  cannot 
revoke,  the  words  and  intent  are  not  performed,  '•  that  any  heir 
of  his  body  may  revoke."  Probably  no  heir  of  the  body  may 
revoke ;  for  the  heir  of  the  body  may,  for  several  successions,  be 
a  daugliter,  and  those  daughters  be  married  before  twenty-one ; 
then,  notwithstanding  this  power,  a  stranger  shall  hold  the  land, 
and  so  she  that  was  an  infant  shall  prejudice  herself  irrevocably 
by  an  act  by  her  during  her  infancy.  The  like  may  be  the  mis- 
chief if  the  heir  of  the  body  were  a  son :  if  he  cannot  revoke 
during  his  minority,  perhaps  he  can  never  revoke,  for  he  may  die 
during  his  minority,  and  leave  a  son  or  daughter  behind.  But  he 
was  of  opinion  that  she  could  not  exercise  the  power  of  appointing 
the  estate  to  her  own  prejudice. 

5.  Bridgeman's  distinction,  that  a  power  of  revocation  and  new 
appointment  may  be  executed  by  an  infant  to  the  extent  of  the 
revocation,  though  not  furtlier,  would  proljably  not  be  followed  at 
this  day.  His  reasoning  is  not  satisfactory,  either  with  reference 
to  the  capacity  of  the  infant,  the  donee,  or  the  intention  of  the 
donor.  His  opinion  was,  that  an  infant  may  execute  a  power 
appendant,  but  he  does  not  discuss  the  real  question,  viz.  whether 
such  a  power  is  not  in  the  nature  of  property,  and  therefore  inca- 
pable of  Ijcing  exercised  by  an  infant. 


490 


SUGDEN   ON   POWERS. 


No.  l.{p-) 

A  Bill  for  amending  the  Laivs  respecting  the  attestation  of 
Instruments^  made  in  exercise  of  certain  Powers  in  Deeds, 
Wills,  and  other  Instruments. 


Whereas  iu  the  creation  of  powers,  authorities  aud  trusts,  the 
same,  or  the  power  of  consenting  to  or  directing  acts 
[  *542  ]  respecting  the  *same,  are  mostly  required  to  be  exer- 
cised by  deeds  or  instruments  executed  by  the  donees 
thereof,  and  attested  by  one  or  more  witness  or  witnesses,  and  the 
mode  of  attestation  required  varies  in  many  cases :  And  whereas 
the  substance  of  the  requisition  in  such  cases  is  the  attesting  by 
the  witnesses  of  the  execution  of  the  instrument ;  the  frame  of  the 
attestation  signed  by  the  witnesses  is  merely  formal :  And  Avhcreas 
the  form  of  the  attestation  frequently,  from  ignorance  or  iuadvcr- 
tance,  has  not  contained  the  full  statement  of  the  acts  which  the 
witnesses  were  required  to  attest,  whereby  the  titles  of  many  pur- 
chasers, and  of  other  persons  claiming  under  such  instruments, 
have  been  defeated :  And  whereas  it  is  expedient  to  prevent  in 
future  such  deeds  and  instruments  from  being  invalidated  for  want 
of  a  formal  attestation  ;  Be  it  therefore  enacted,  that  every  deed 
or  other  instrument  hereafter  to  be  executed,  with  the  intent  to 
exercise  any  power  or  authority  or  trust,  or  to  signify  the  consent 
or  direction  of  any  person  whose  consent  or  direction  may  be 
necessary  to  be  so  signified,  shall,  if  duly  executed  according  to 
the  power,  and  attested  by  the  number  of  witnesses  required  by 
the  power,  althougli  the  attestation  signed  by  the  witness  or  wit- 
nesses shall  not  state  the  compliance  with  the  terms  of  the  power, 
be  of  the  sa^iie  validity  and  effect,  and  no  other,  at  law  and  in 
equity,  and  provable  in  like  manner  as  if  a  full  and  proper  memo- 
randum of  attestation  had  been  subscribed  by  the  witness  or  wit- 
nesses tliereto :  And  the  attestation  of  the  witness  or  witnesses 
thereto  in  general  terms,  or  merely  expressing  the  fact  of  one 
ceremony  having  been  performed,  without  stating  the  other  or 
others,  or  whatever  the  form  of  the  attestation  may  be,  shall  not 
exclude  the  proof  or  the  presumption  of  the  ceremonies  to  which 

(v)  Vitle  supra,  vol.  1,  p.  310. 


APPENDIX.  491 

the  witnesses  were  required  to  subscrilx;  an  attestation,  having 
been  actually  performed. 

No.  8. 

Scroggs  V.  Scroggs. 

Reg.  Lib.  B.  1754,  fol.  496. (^) 

The  trust  in  the  agreement  before  marriage  was,  "  to  permit 
such  son  or  sons  of  their  l)odics,  and  the  heirs  male  of  such  sons, 
to  receive  the  rents  during  all  such  time  as  the  trustees  should 
have  in  the  premises,  as  the  plaintiff's  father,  together 
with  the  trustees,  or  *the  major  j)art  of  tliem,  or  together  [  *543  ] 
with  the  survivor  of  them,  should  appoint."  By  the 
settlement,  the  eldest  son,  was  in  every  event  to  have  100/.  a 
year,  and  childrsn  were  substituted  for  sons.  The  settlement  was 
executed  when  the  plaintifi",  the  eldest  son,  was  two  and  one-half 
year  old,  and  lie  had  lost  his  sight.  The  plaintiif  stated  that  his 
father  wanted  him  to  sell  his  reversion,  which  he  would  not  do, 
and  that  then  the  father  made  a  bargain  with  the  second  son,  to 
whom  he  appointed  :  That  the  father  represented  to  the  trustee 
that  the  eldest  son  had  threatened  to  sell  his  reversion,  and  was 
very  undutiful,  &c.  The  plaintiff  insisted  that  the  variation  in 
the  settlement,  as  there  was  then  no  other  sou,  and  he  had  lost 
his  sight,  was  to  warrant  an  appointment  to  a  daughter,  in  case 
there  was  no  other  son.  ' 

The  father  and  mother  denied  any  knowledge  of  the  variation ; 
and  stated  the  disorderly  life  of  the  son,  and  his  marriage  to  a 
woman  of  no  fortune.  The  father  stated  that  he  applied  to  his 
son  to  join  in  the  sale  of  the  estate  for  his  own  benefit. 

The  father's  answer,  in  which  he  represented  the  Duke  of  Som- 
erset, the  surviving  trustee,  as  a  perfectly  consenting  party  to  the 
appointment,  was  flatly  contradicted  by  the  Duke  himself,  who 
stated,  that  he  believed  that  the  father  had  misrepresented  the 
son  to  him,  and  that  if  he  had  been  apprized  of  all  the  circum- 
stances, he  would  not  have  executed  the  appointment. 

There  appeared  to  be  a  dispute  between  the  father  and  eldest 

(7)  Vide  supra,  vol.  1,  p.  328. 


492 


SUGDEN   ON   POWERS. 


son,  about  another  estate  belonging  to  the  son,  of  which  the  father 
had  received  the  rents  during  the  son's  minority. 

It  was  decreed,  "  that  the  deed  of  appointment  be  set  aside, 
and  that  it  be  delivered  up  to  the  plaintifl'  to  be  cancelled  ;  and 
that  neither  the  defendant  Edward  Scroggs,  the  second  son,  nor 
any  of  his  issue,  do  insist  on,  or  make  use  of  the  deed  of  appoint- 
ment, or  the  contents  or  o])cration  of  it,  in  any  court  of  law  or  of 
equity.  And  liis  Lordsliip  doth  declare,  that  the  settlement  exe- 
cuted after  tlie  marriage,  hath  unwarrantably  departed  from  the 
marriage  articles,  })y  limiting  the  estate  to  the  use  of  such  child  or 
children  as  sliould  l)e  appointed,  instead  of  limiting  the  same  to 
such  son  or  sons,  &c.  and  the  same  ought  to  be  rectified.  And 
his  Lordship  ordered  a  new  settlement  to  be  executed  according- 
ly," and  the  father  was  decreed  to  pay  the  costs. 


[  *544  ] 


*No.  9. 
Shane  v.  Cadogan.(r') 


In  this  case,  where  it  was  contended  that  a  general  bequest  l)y 
Mr.  Cadogan  included  property  over  Avhich  lie  had  only  a  power, 
and  consequently  defeated  a  gift  in  the  settlement  to  Lord  Cado- 
gan in  default  of  appointment,  it  was  admitted  in  the  argument 
that  in  general  a  sweeping  disposition,  however  unlimited  in 
terms,  would  not  include  property  over  which  the  testator  had 
merely  a  power,  unless  an  intention  to  execute  the  power  could 
be  inferred  from  the  will.  But  it  was  said  that  great  Judges  had 
disapproved  of  that  rule.  Lord  Alvanley,  in  Laugham  v.  Nenny, 
3  Ves.  jun.  467,  wished  that  the  rule  had  been  otherwise ;  and 
that  it  had  been  held  that  a  general  disposition  would  operate  as 
an  execution  of  the  power ;  and  in  Nannock  v.  Horton,  7  Ves. 
jun.  391,  Lord  Eldou  said,  that  he  was  not  sure  that  the  rule  as 
now  established  did  not  defeat  the  intention  nine  times  out  of  ten. 
In  favour  of  the  rule  it  had  been  said  that  to  overturn  it  would 
be  to  destroy  the  distinction  between  power  and  property.  That 
was  denied.  The  marked  and  only  material  distinction  between 
power  and  property  is,  tliat  in  case  of  absolute  property,  although 
the  party  make  no  disposition  of  it,  yet  it  will  descend  to  his 

(>•)  Vide  supra,  toI.  1,  p.  3G7. 


APPENDIX.  498 

representatives ;    whereas  a  person   must   actually   execute   his 
power,  or  the  fund  Avill  go  to  the  })erson  to  wliom  it  is  given  in 
default  of  appointment.     But  why  should  not  the  same  words 
operate  as  an  execution  of  the  power  which  would  pass  the  aljso- 
lute  interest  ?     Where  is  the  distinction  as  to  the  purposes  of 
disposition  between  a  general  power  like  this  and  the  absolute 
interest  ?     If  the  solemnities  required  by  the  power  are  adhered 
to,  it  would  startle  a  man  of  common  sense,  not  versed  in  legal 
subtleties,  to  understand  so  refined  a  distinction.     As  therefore, 
the  rule  stood  upon  no  principle,  and  had  been  regretted  by  great 
Judges,  the  Court  would  be  anxious  to  distinguish  cases,  and  not 
to  consider  every  case  within  this  general  rule.     Now  there  was 
not  a  single  case  in  the  books  which  governed  the  present.     It 
was  a  peculiarly  strong  case.     The  gift  to  the  Earl  in  default  of 
appointment  was  without  consideration,  and  the  parties  had  a 
power  of  revocation.     The  persons  who  prepared  the  settlement 
did  not  understand  the  distinction  between  power  and  projjerty. 
They  gave  the  money  to  such  persons  as  Mr.  C.  should 
appoint,  and  in  default  of  *appointment,  to  him  and  his  [  *545  ] 
assigns.    There  the  power  was  merely  nugatory  ;  it  was 
not  larger  than  the  gift,  nor  difierent  from  it  in  effect ;  besides, 
the  property  moved  from  Mr.  Cadogan  ;  the  settlement  as  to  tlie 
Earl  was  merely  voluntary ;  and  the  power  was  part  of  Mr.  Cado- 
gan's  old   dominion,  and  consequently  the  execution  of  it  must 
receive  a  favourable  interpretation.     In  this  respect  it  was  said 
that  all  thc^  cases  were  distinguishable  :    Moulton  v.  Hutchinson, 
1  Atk.  558 ;  Andrews  v.  Emmott,  2  Bro.  C.  C.  207  ;  Buckland 
v.  Barton,  2  H.   Blackst.   136;    Croft  v.  Slee,  4  Ves.  jun.  (50: 
Nannock  v.  Horton,  7  Ves.  jun.  391 ;  and  Bradley  v.  Westcott, 
18  Ves.  jun.  445,  were  all  cases  where  the  power- was  given  by 
one  person  to  another,  and  could  not  be  compared  to  the  present, 
where  the  power  was  reserved  )jy  the  party  over  his  own  property. 
There  were  two  cases,  it  was  admitted,  where  nearly  the  same 
circumstances  did  occur,  Ex-parte  Caswell,  1  Atk.  599,  Bennet  v. 
Aburrow,  8  Ves,  jun.  (309.     l^it  the  first  case  came  on  merely 
upon  a  petition,  and  Lord  Hardwicke  said,  he  would  not  say  what 
his  opinion  would  be,  if  it  came  on  upon  bill  and  answer.    Besides, 
Lord  Hardwicke  overruled  this  case  by  a  later  determination.    In 
the  last  case  the  property  in  default  of  appointment  was  given  to 
Vol.  IJ.  42 


494  SUGDEN   ON   POWERS. 

the  next  of  kin,  which  might  be  thouglit  to  distinguish  it  from  the 
prcscflt.  But  if  there  was  no  authority  against  the  phiiutifl',  there 
were  two  very  consideral^le  oases  in  lier  fiivour.  The  first  was 
Maddison  v.  Andrew,  1  Yes.  57.  There  a  man  made  a  settle- 
ment, reserving  to  himself  power  tQ  charge,  limit,  or  appoint  the 
estate,  with  any  cum  not  exceeding  1,000/.  By  his  will,  without 
making  the  slightest  reference  to  his  power,  he  gave  some  legacies, 
and  then  charged  all  his  estate  with  the  payment  of  his  debts  and 
legacies.  Lord  Hardwicke  held,  that  the  power  was  part  of  the 
old  ownership,  and  that  it  was  but  a  shadow  of  difference  that  he 
had  charged  his  estate,  whereas  that  was  before  settled  to  uses, 
for  these  powers  to  the  owner  were  to  be  considered  as  part  of 
the  property.  Now  tliis  was  precisely  the  present  case ;  and  to 
decree  against  the  jilainti-ff,  the  Court,  it  was  strongly  insisted, 
must  overrule  Lord  Hardwicke's  decision.  The  other  case  was 
Standen  v.  Standen.  It  was  impossible  to  read  that* case  without 
seeiiig  that  Lord  Rosslyn  would  have  decided  it  on  the  ground 
of  the  power  being  equivalent  to  the  ownership,  even  if  the  cir- 
cumstance had  not  occurred  to  which  the  decision  was  generally 
referred,  that  the  testatrix  had  no  real  estate  except 
[  *54G  ]  what  was  subject  to  the  power ;  and  *yet  in  that  case 
the  power  was  a  gift  by  a  will  from  a  husband  to  his 
wife,  and  was  not  a  part  of  the  donee's  old  dominion. 

On  the  other  hand,  it  was  argued,  that  to  hold  the  will  to  be 
an  execution  of  the  power  would  be  to  over-rule  all  the  cases  on 
residuary  bequests.  The  case  of  Maddison  v.  Andrew  decided 
nothing  more  than  that  where  a  man  had  a  general  power  of 
appointment  the  fund  should  be  subject  to  his  debts,  which  had 
been  long  the  law  of  that  court ;  but  the  Master  of  the  Rolls 
observed,  that  there,  as  in  the  case  before  him,  tlie  estate  was 
settled  subject  to  the  power;  at  any  rate  then,  it  was  said,  that 
case  was  not  now  an  authority. 

The  Master  of  the  Rolls  held  that  the  will  did  not  amount  to 
an  execution  of  the  power.  The  circumstance  of  the  attestation 
had  been  held  not  to  be  material,  and  it  was  now  settled  that  a 
general  disposition  would  not  include  property  over  which  the 
party  had  only  a  power,  unless  an  intention  appear. 


APPENDIX.  49© 

No.  10. 
Tempest  v.  Sab i tie. (^s) 
Pollexfen  v.  Adelmere. 

Chancery,  29th  June  1743. 
24^A  November  1702.  By  a  marriage  settlement,  a  term  of 
600  years  was  created  to  raise  and  pay  to  younger  children  such 
sums  as  the  father  should  think  fit,  and  as  he  by  deed  or  will 
should  appoint,  and  subject  to  and  chargeable  with  the  same  upon 
trust  to  attend  the  inheritance.  The  father,  who  was  tenant  for 
life,  and  the  eldest  son  of  the  man  who  was  tenant  in  tail,  suffered 
a  recovery  to  the  use  of  the  father  in  fee,  Ijut  the  recovery  did 
not  destroy  the  term.  The  father  and  son  made  a  mortgage  in 
fee,  and  the  father  covenanted  not  to  make  any  appointment  of 
portions  to  overreach  the  mortgage.  By  his  will  he  devised  the 
estates  to  trustees,  to  sell  and  pay  the  incumbrances  and  his 
debts ;  and  out  of  the  remainder  of  the  money  to  pay  his  second 
son  1,000/.,  and  to  his  two  daughters  3,000/.  a-piece.  The  second 
son  and  two  daughters  insisted  that  the  will  operated  as  an 
appointment  of  portions  under  the  term,  and  that  they  were  enti- 
tled prior  to  the  mortgages.  By  the  decree  made  by  the  Lord 
Chancellor,  after  stating  that  a  question  arising  whether 
the  *portions  and  maintenance  given  by  the  said  will  [  *o47  ] 
out  of  the  residue  of  the  money  arising  by  sale  of  the 
real  estate,  ought  to  be  considered  as  an  execution  of  the  power 
vested  in  the  said  testator  by  his  marriage  settlement,  touching 
portions  and  maintenances  for  his  younger  childr<3n,  and  as  a 
charge  on  the  term  of  GOO  years  thereby  limited,  his  Lordship 
declared  that  the  same  could  not,  under  the  circumstances  of  the 
case,  be  considered  as  an  execution  of  the  said  power,  or  a  charge 
on  the  said  term  of  GOO  years ;  and  therefore, 

Did  order  and  decree  the  said  Wm.  Freeman,  the  surviving 
trustee  of  the  said  term,  to  assign  the  same  to  attend  the 
inheritance,  or  for  the  benefit  of  any  purchaser  or  pur- 
chasers of  the  said  estate,  as  the  said  Master  shall  direct. 

(s)  Vide  supra,  vol.  1,  p.  370. 


■li'G  SUGDEN    ON   POWERS. 

No.   11. 
Wallop  V.  Earl  of  Porlsmoulh,  Rolls,  25th  April,  1752.(0 

By  indentures  of  Lease  and  Release,  of  the  25th  and  2Gth 
days  of  May,  1742,  the  Release  being  of  four  parts,  and  made 
between  "William  Sloper,  Charles  Smith,  and  Alexander  Chal- 
mers, of  the  first  part ;  John  Wallop  and  Catherine  his  wife  (af- 
terwards Lord  and  Lady  Lymington,)  of  the  second  part ;  Thomas 
Vivian,  Esq.  of  the  third  part ;  and  Joseph  Ashton  Gent,  of  the 
fourth  part,  all  the  several  estates  of  Lady  Lymington  were  con- 
veyed to  several  uses,  and  from  and  after  the  deaths  of  Lord  and 
Lady  Lymington  and  the  survivor  of  them.  To  the  uge  of  such 
child  or  children,  sous  or  daughters,  or  solely  to  one  of  them,  as 
after  to  be  begotten,  on  the  said  Lady  Lymington,  1)y  her  said 
husband,  or  by  any  other  husband  or  husbands  that  slie  should 
after  marry,  in  such  shares,  &c.  and  for  such  estates,  &c.  and  sub- 
ject to  such  conditions,  and  to  the  payment  of  any  sum  or  sums 
not  exceeding  2000/.  to  any  person  except  such  child  or  children 
of  the  said  Lady  Lymington,  and  at  such  time  and  for  such  uses 
as  Lady  Lymington,  notwithstanding  her  coverture,  should  by  any 
writing,  executed  by  her  in  the  presence  of  three  witnesses,  ap- 
point, with  or  without  power  of  revocation,  and  with  or  without 
power  of  limitation  of  new  and  other  uses ;  in  default  of  appoint- 
ment to  the  first  and  other  sons  in  tail,  with  remainders  over. 

The  estates  were  vested  in  trustees  by  an  Act  of  Parliament  to 
sell,  and  pay  debts,  and  lay  out  tlie  money  in  the  purchase  of 
other  estates,  to  be  settled  with  the  estates  unsold  to  the  old 

uses. 
[  *548  ]  *Lord  Lymington  died  the  18th  November,  1749. 
Lady  Lymington  died  15th  April,  1750,  without  mak- 
ing any  appointment,  in  pursuance  of  the  before-mentioned  power 
in  the  Indentures  of  Lease  and  Release  of  the  25th  and  2Gth  days 
of  March,  1742,  unless  by  will  hereinafter  mentioned. 

Lady  Lymington  by  her  will,  willed  and  desired  that  all  her 

(/)  VMe  supra,  vol.  1,  p.  377. 


APPENDIX.  497 

debts,  legacies,  and  funeral  expenses,  be  first  paid  and  satisfied 
out  of  her  real  and  personal  estate,  which  she  did  thereby  charge 
witli  the  same  ;  and  gave  and  bequeathed  to  her  sons,  Barton 
Wallop,  and  Bonnet  Wallop,  the  sum  of  2000/.  a-piece,  and  gave 
and  bcqueatlied  to  her  son  Henry  Wallop  the  sum  of  1,000/. 
Then  she  gave  other  specific  and  pecuniary  legacies.  And  to 
her  daughter  Catherine  the  sum  of  7,000/.  besides  the  3,000/.  she 
was  entitled  to  by  her  marriage  settlement,  which  would  make 
her  portion  10,000/.  to  be  paid  her  when  she  should  attain  the 
age  of  21  years,  or  be  married :  but  in  case  she  should  happen  to 
die  before  slie  attained  the  age  of  21  years,  or  be  married,  then 
lier  will  and  desire  was  that  the  said  sum  of  7,000/.  should  go 
and  be  equally  dividq,d  amongst  her  younger  children.  And 
lastly,  all  tlie  rest  and  residue  of  her  goods,  chattels,  pictures, 
furniture,  and  estates  both  real  and  personal  whatsoever  and 
wheresoever  she  di-ed  possessed  of  (after  the  above  legacies  and 
funeral  expenses  should  bo  first  paid  and  satisfied,)  she  gave,  de- 
vised and  bequeathed,  unto  her  eldest  son  John  Wallop,  Esquire, 
commonly  called  Lord  Viscount  Lymington,  his  heirs  and  assigns. 

Qucere. — Whether  the  will,  under  the  circumstances  aforesaid, 
is  executed  according  to  law,  or  not ;  and  if  the  same 
will  operated  as  a  sufficient  appointment  by  virtue  of 
the  deed  of  the  26th  of  May,  1742,  or  not  ? 

The  answer  to  this  query  will  depend  on  several  othei-s,  and  I 
am  of  opinion  that  the  power  might  be  executed  by  will.  That 
the  execution  of  this  will  in  the  manner  stated  is  a  sufficient  exe- 
cution within  the  power.  That  though  she  does  not  refer  to  the 
power,  nor  describe  the  particular  lands  subject  to  it,  otherwise 
than  by  the  words  my  estate,  yet  if  she  had  no  other  real  estate, 
(as.  from  its  being  stated  that  all  her  estates  were  settled,  I  pre- 
sume she  had  not,)  I  think  the  will,  as  penned,  must  from  neces- 
sity be  understood  to  mean  the  estates  included  in  her  power. 

That  the  several  sums  of  money  given  to  her  children  and  oth- 
ers were  phargcd  by  virtue  of  the  will  and  power,  so  far  as  her 
power  extended  ;  and, 

*That  the  real  estate,  subject  to  those  charges,  is  well  [  *o49  ] 
passed  by  the  will,  as  an  appointment  to  Jolm  Wallop, 
her  eldest  son, 

D.  Ryder,  24th  April,  1750. 
42* 


498  SUGDEN   ON   POWERS. 

His  Honor  did  declare,  that  tlic  appointment  made  by  the  said 
late  Lady  Lymingtoii  of  2,000/.  to  her  sou,  the  })laiutiff,  Bartou 
WaUop  ;  oi'  2,000/.  to  her  son  the  plaintilT,  Uennet  Wallop  ;  of 
1,000/.  to  her  son  the  plaintifl",  Henry  Wallop  ;  of  7,000/.  to  her 
daughter,  the  plaintiff,  Catherine  Wallop ;  and  of  500/.  to  the  de- 
fendant, Jeffery  Ekins  ;  100/,  to  Elizaljoth  Bartou,  Avife  of  Jeflery 
Carton  ;  100/.  to  Matthew  Barton  ;  100/.  to  Montague  Bartou  ; 
100/.  to  George  Reynoldson  ;  10/.  to  Mary  Brett ;  and  10/.  to 
Ann  Horsley,  is  a  good  appointment.  And  did  order  and  decree 
that  it  be  referred  to  the  said  Master,  to  compute  interest  on  all 
the  several  sums  in  the  said  appointment  before  pcntioned,  ex- 
cept the  7,000/.  to  the  plaintiff  Catherine  Wallop,  after  the  rate 
of  4/.  per  cent,  per  aunum,  from  the  enQ.  of  one  year  after  the 
death  of  the  said  Lady  Lymiugtou.  And  it  was  ordered,  that  the 
said  several  sums,  and  interest,  to  be  computed  as  aforesaid,  be 
paid  by  the  defendants  John  Sanderson  and  Charles  Randolph, 
out  of  the  surplus  of  the  money  which  should  arise  by  sale  of  es- 
tates vested  in  them  by  the  said  Act  of  Parliament.  And  that 
the  rents  and  profits  thereof  after  the  other  trusts  mentioned  in 
the  said  Act  of  Parliament  were  performed,  and  the  several  other 
sums  appointed  for  the  several  other  persons  before  named,  and 
interest  for  the  same,  were  to  be  paid  them  respectively.  And 
in  case  there  should  be  any  surplus  of  the  money  which  should 
arise  by  sale  of  the  said  estate,  after  the  execution  of  the  trusts 
contained  in  the  said  Act  of  Parliament,  and  the  payment  of  the 
said  several  sums  in  the  ap})oiutment  before  mcutioncd,  and  inter- 
est as  aforesaid,  it  was  ordered,  that  the  same  he  laid  out  in  the 
purchase  of  lands,  with  the  approbation  of  the  said  Master  ;  and 
such  lands  were  to  be  conveyed  to  the  defendant,  Lord  Lyming- 
ton,  and  his  heirs ;  and  until  such  purchase  should  be  made,  it 
was  ordered  that  such  surplus  be  laid  out  in  the  purchase  of 
South  Sea  annuities,  subscribed  in  the  name  and  with  the  privity 
of  the  said  Accountant-general :  and  he  was  to  declare  the  trust 
thereof,  subject  to  the  further  order  of  the  Court,  And  it  was  or- 
dered that  the  interest  of  such  South  Sea  annuities  be  paid  to  the 
same  person  as  would  be  entitled  to  the  rents  and  profits  of  the 
lands  if  purchased. 


APPENDIX.  499 

No.  12.  [  *o50  ] 

Dillon  V.  Dillon. 

Reg.  Lil).  26th  January,  1809. (m) 

*•  Decree  a  settlement  to  be  executed,  pursuant  to  the  articles 
of  the  25th  of  October,  176-1,  in  the  pleadings  mentioned  :  and 
accordingly  Ic^t  the  lands  of  Lissavora,  and  the  lands  of  Balty- 
laniel,  subject  to  a  life  estate  to  Charles  Bun  worth  and  Mary  his 
wife  in  the  lands  of  Lissavora,  and  to  a  life  estate  for  Charles 
iiunworth  in  the  lands  of  Baltydaniel,  be  settled,  as  to  a  moiety, 
to  the  use  of  Croker  Dillon  for  life,  remainder  to  his  first  and 
every  otlier  son  in  quasi  tail ;  remainder  to  the  daughters  in 
quasi  tail ;  remainder  to  Elizaljcth  Bunworth  in  quasi  fee.  And 
as  to  the  other  moiety,  to  the  use  of  Elizabeth  Bunworth  for  life ; 
remainder  to  her  first  and  other  sons  in  quasi  tail ;  remainder  to 
her  daughters  in  quasi  tail ;  remainder  to  Croker  Dillon  in  quasi 
tail  special,  with  a  power  to  the  said  Croker  Dillon  of  ai)pointing 
both  moieties,  in  sucli  shares,  manner  and  })roportions  as  he  should 
think  fit,  amongst  the  children  of  him  and  Mary  his  wife  :  and 
declare  that  the  will  of  the  said  Croker  Dillon  was  a  good  execu- 
tion of  the  said  power,  so  far  as  is  intended  to  make  an  equal  dis- 
tribution of  the  said  settled  estates  between  the  children  of  the 
said  marriage,  but  to  the  extent  only  of  limiting  to  them  respec- 
tively estates  tail  therein  :  and  declare  that  each  of  the  children 
took  one-seventh  of  the  lands  of  Lissavora  and  Baltydaniel  as  ten- 
ants in  tail :  and  in  the  events  which  have  happened,  decree  the 
plaintiir  entitled  to  three-sevenths  of  the  said  lands  of  Lissavora 
and  Baltydaniel,  and  of  the  other  lands  mentioned  in  the  will  of 
Croker  Dil/on,  being  the  lands  of  Killemacroshane^  Shanebine 
ind  Lahcrn ;  that  is  to  say,  one-seventh  of  his  own  right,  one- 
seventh  devised  to  his  brother  John,  and  one-seventh  devised  to 
Caroline  Dillon  :  and  let  three-sevenths  of  the  said  lands  be  set 
apart  accordingly,  and  for  that  purpose  let  there  be  a  partition." 

(u)-  Vide  supra,  vol.  1,  p.  393.  * 


500  SUGDEN    ON    POWERS. 

Account  of  the  rents  and  profits  oi'  the  three-sevenths,  viz.  of 
one-seventh  from  the  death  of  the  father,  one-seventh  from  the 
death  of  John,  one-seventh  from  that  of  Caroline. 

Defendants  to  account  for  sums  received  by  them  out  of  the 
shares  of  John  and  Caroline,  and  defendants  Elizabeth, 
[  *y51  ]  Anne  and  Harriet  *to  give  credit  for  such  sums  out  of 
certain  bonds  mentioned  in  the  pleadings. 

Injunction  to  restrain  proceedings  on  foot  of  the  bonds  continu- 
ed till  the  taking  of  the  accounts. 

No  costs. 

No.  13. 
Earl  of  Cardigan  v.  Montague. 
Reg.  Lib.  A.  1754,  fol.  406.(x) 

This  case  arose  upon  a  question  of  Election. 

It  appeared  that  the  late  Duke  of  Montague,  under  a  power 
contained  in  his  marriage  settlement,  executed  leases  to  the  de- 
fendant, Edward  Montague,  who  executed  declarations  of  trust, 
declaring  such  leases  to  be  made  in  trust  for  the  Duke  ;  and  the 
defendants  prayed  an  inquiry  as  to  the  quantum  of  the  rent,  &c. 
before  they  were  put  to  their  election,  and  hoped  that  the  Court 
would  thereupon  first  determine  the  validity  or  invalidity  of  such 
leases. 

Whereupon  it  was  referred  to  Master  Montague,  to  look  into 
the  several  leases  which  were  made  by  the  Duke  to  Edwai'd 
Montague,  of  the  settled  estate,  which  were  then  subsisting,  and 
to  inquire  what  powers  were  vested  in  the  Duke  for  leasing  the 
estates,  and  to  state  his  opinion  thereon. 

The  Master  by  his  report  stated  tliat  he  had  inquired  what 
powers  were  vested  in  the  Duke  ;  and  that  the  only  power  which 
was  vested  in  him  was  contained  in  a  settlement  of  Jan.  1704,  in 
the  words  following :  Provided  also,  that  it  shall  be  lawful  for 
the  said  Earl  Montague,  and  John   (the  late   Duke),  as  they 

(x)  Vide  supra,  vol.  1,  p.  446;  vol.  2,  p.  400.  402,  403,  404,  406.  417.  421.  444, 
t46.  449. 


APPENDIX.  501 

should  be  in  possession  during  their  lives  respectively,  by  Inden- 
ture under  his  or  their  respective  hand  or  hands,  and  seal  or  seals, 
attested  by  two  or  more  credible  witnesses,  to  make  any  lease  or 
leases  of  all  those  iron-works  and  furnaces  in  the  city  of  South- 
ampton, and  of  all  other  the  lauds,  tenements,  woods,  heredita- 
meuts,  rights,  privileges,  and  other  things,  mentioned  in  and 
agreed  to  be  demised  by  the  Earl,  by  an  Indenture  bearing  date 
the  20th  Dec.  1701,  and  certain  deeds  therein  recited,  for  such 
term  ai^d  terms,  and  under  such  rents,  covenants,  and  agreements, 
as  are  therein  agreed  on,  or  to  any  person  or  persons,  from  time 
to  time,  for  ady  term  or  numljcr  of  years  absolute,  not  exceeding 
thirty-one  years,  or  for  any  number  of  years  determin- 
able *ou  one,  two, .or  three  lives  in  possession  or  rever-  [  *552  ] 
sion,  or  by  way  of  future  interest,  so  as  there  be  not  in 
being  at  one  and  the  same  time  any  lease  or  leases  for  years  al> 
solute,  for  above  thirty-one  years  in  the  whole,  and  so  all  such 
leases,  determinable  on  life  or  lives,  Ijo  not  to  continue  longer 
than  for  three  lives,  and  so  as  upon  every  such  lease  there  be  re- 
served such  rents  or  payments,  or  more,  as  by  the  said  Indenture 
thereinbefore  referred  to  was  mentioned  and  agreed  to  be  reserved ; 
and  also,  by  any  indenture  in  like  manner  to  be  made  and  attested, 
to  make  any  lease  or  leases  of  any  of  the  said  messuages  in  the 
county  of  Middlesex,  for  the  encouragement  of  rebuilding  the 
same,  for  any  term  or  terms  not  exceeding  sixty-one  years  from 
the  making  thereof,  at  and  under  the  like  respective  rents  as  were 
paid  for  tlie  same  on  the  first  Ijuilding  thereof,  or  more  ;  and  also 
by  an  indenture,  in  like  manner  to  be  made  and  attested,  to  make 
any  lease  or  leases  of  all  or  any  other  }jart  or  parcel,  i)arts  or 
parcels  of  the  same  premises  before  mentioned,  other  than  the 
said  capital  messuage  called  Ditton-house,  and  the  orchards,  gar- 
dens, yards  and  lands  limited  to  the  use  of  Lady  ]Mary  Cliuroliill, 
and  also  other  than  the  aforesaid  mansion-house  called  Boughton- 
house,  with  the  a[)purtenances  thereof,  unto  any  person  or  per- 
sons for  the  term  of  twenty-one  years,  or  for  any  term  or  number 
of  years  not  exceeding  twenty-one  years,  or  for  any  term  or  num- 
ber of  years  determinable  upon  the  death  of  one,  two,  or  three 
lives  in  possession,  or  by  way  of  future  interest  of  such  of  the 
said  premises  as  have  been  usually  demised  for  one,  two,  or  three 
life  or  lives,  or  for  years  determinable  upon  the  death  of  one,  two, 


502  SUDGEN  ON  POWERS. 

or  three  person  or  persons,  s  as  such  estates  granted  in  possession, 
and  l)y  way  of  future  interest  absolute,  be  not  made  to  continue 
longer  than  for  twenty-one  years,  and  so  as  such  terms  for  years 
granted  for  longer  time  than  twenty-one  years  be  all  made  to  de- 
termine upon  the  deaths  of  one,  two,  or  three  persons  at  the  most, 
and  so  as  upon  all  such  leases  made  of  such  part  of  the  said  premi- 
ses as  have  been  usually  let  for  three  lives,  or  for  any  term  of 
years  determinable  upon  one,  two,  or  three  life  or  lives  in  posses- 
sion or  by  way  of  future  interest  as  aforesaid,  -there  be  r(^erved, 
to  continue  due  and  payable  yearly,  during  such  leases,  the  an- 
cient^ usual  and  accustomed  rents,  boons,  heriots,  and  services 
usually  paid  for  the  same,  or  more,  and  so  as  by  and  upon  all  such 
leases  to  be  made  for  twenty-one  years,  or  any  Jess  term  of  years 
absolute,  not  usually  let  for  life  or  lives,  or  for  years  determinable 

on  lives  as  aforesaid,  there  be  reserved,  to  continue 
[  *553  ]   due  and  payable  yearly,  during  *'the  continuance  of  such 

leases,  the  utmost  and  best  improved  yearly  rent  or 
rents,  luhich  at  the  time  of  making-  thereof  can  or  may  be  reason- 
ably gotten,  without  fine  or  other  income  for  the  same,  and  so  as 
in  every  such  lease,  or  leases  which  shall  be  made  by  virtue  of 
any  of  the  powers  aforesaid,  there  be  contained  a  condition  of  re- 
entry for  non-payment  of  the  said  rent  or  rents  thereby  to  be  re- 
served, and  so  as  such  lease  or  leases  be  made  without  impeach- 
ment of  waste  by  express  words  to  be  therein  contained,  and  so 
as  the  lessee  or  lessees  to  whom  such  lease  or  leases  be  made  do 
execute  counterparts  thereof." 

(1)  And  the  Master  found  twenty-four  leases  respectively  num- 
bered from  one  to  twenty-four,  both  inclusive,  to  have  been  all 
the  leases  granted  by  the  Duke  under  the  power;  and  he  stated 
that  he  had  proceeded  to  look  into  them.  And  he  found  that  the 
first  three  of  such  leases,  severally  numbered  1,  2,  and  3,  were 
each  of  them  made  for  the  absolute  term  of  twenty-one  years,  com- 
mencing at  Lady-day  1749  ;  and  that  all  the  other  twenty-one 
leases  were  respectively  made  for  the  term  of  ninety-nine  years, 
commencing  at  Lady-day  1749,  if  the  plaintilfs,  Mary  Countess  of 
Cardigan,  her  eldest  son,  and  the  Duchess  Dowager  of  Manches- 
ter, or  any  of  them,  should  so  long  live  ;  and  as  to  the  lease.  No.  1, 
whcreljy  the  mansion-house  called  Montague-house,  &c.  were  de- 
mised to  Edward  Montague  for  twenty-one  years  absolutely,  at  the 


APPENDIX.  503 

yearly  rent  of  300/.  payable  half-yearly,  at  Michaelmas  and  Lady- 
day,  unto  the  testator  the  late  Duke,  and  the  person  or  persons 
who  for  the  time  being  should  be  seised  of  the  premises  in  remain- 
der after  him,  with  a  proviso  therein  contained,  that  if  the  Duke 
should  at  any  time  during  his  life,  and  the  continuance  of  such 
lease,  pay  or  tender  or  cause  to  be  paid  or  tendered  to  the  said 
Edward  Montague,  his  executors,  administrators,  or  assigns,  in  the 
dining-hall  of  Gray's  Inn,  l,s'.,  then  the  lease,  and  all  clauses,  <fec. 
therein  contained,  should  absolutely  determine  ;  and  the  like  pro- 
viso or  power  being  inserted  in  every  one  of  the  said  twenty-four 
leases,  and  no  other  ol»jcctiofl  having  been  made  before  the  said 
Master  to  the  said  lease.  No.  1,  but  what  arose  from  such  proviso, 
which  objection  had  been  made  to  every  one  of  the  said  twenty- 
four  leases,  the  Master  conceived  that  the  lease.  No.  1,  notwith- 
standing such  objection,  was  a  valid  lease,  and  warranted  by  the 
said  power  of  leasing.  (?/) 

(2)  But  as  to  the  suid  lease.  No.  2,  whereby  not  only  the  hon- 
our of  Gloucester,  but  likewise  sixteen  several  manors 

in  Northampton  *and  more  particularly  the  manor  of  [  *554  ] 
Boughton,  and  a  great  walk,  and  Buugl>ton  Park,  with 
the  deer  therein,  together  with  other  lands  in  Northampton,  and 
also  the  manor  of  Bcaulieu  in  Southampton,  were  demised  to  Ed- 
ward Montague  for  the  like  term  of  twenty-one  years,  absolute, 
at  the  yearly  rent  of  GOO/,  payable  half-yearly  as  aforesaid,  the 
said  Master  did  conceive,  from  the  general,  extensive,  casual, 
and  uncertain  nature  and  values  of  the  greater  part  at  least  of  the 
premises,  and  the  great  difficulty,  if  not  utter  impossibility  aris- 
ing from  thence,  of  forming  any  judgment  whether  the  rent  there- 
by reserved  was  the  utmost  and  best  improved  yearly  rent  which 
at  the  time  of  making  such  lease  could  or  miglit  have  been  reason- 
ably gotten  for  all  the  premises,  and  the  rather  as  there  was  no 
exception  confined  therein  of  Boughton-house,  &c.  wliich  were 
expressly  excepted  out  of  the  said  power  of  leasing,  for  the  said 
reasons  he  did  conceive  that  the  lease.  No.  2,  was  not  a  valid 
lease,  nor  warranted  by  the  power. (2:) 

(3)  And  as  to  the  said  lease.  No.  3,  whereby  the  manor  of 
Ditton  and  Ditton  Park,  together  with  a  farm  called  Hams,  and 

(y)  This  was  acquiesced  in.  (z)  This  was  acquiesced  in. 


504  SUGDEN  ON  POWERS. 

ten  acres  of  land,  were  demised  to  Edward  ;^fontaguo  for  the  like 
term  of  twenty-one  years,  at  the  yearly  rent  of  290/.  payable  as 
aforesaid,  there,  being  no  exception  contained  in  such  lease  of 
Dittoii-house,  &c.  limited  Ity  the  marriage  settlement  to  the  use  of 
Lady  ^lary  Churchill  for  life,  which,  it  was  admitted  before  the 
said  Master,  were  part  of  the  manor  of  Ditton,  and  were  express- 
ly excepted  out  of  the  power  of  leasing,  he  did  therefore  conceive 
the  said  lease.  No.  3,  not  to  be  a  valid  lease,  nor  warranted  by 
the  power.  («) 

(4)  And  as  to  the  lease,  No.  4,  whereby  the  iron-works  in  the 
county  of  Southampton,  and  also  two  corn-mills,  and  the  land 
thereto,  witli  other  lands,  were  demised  to  Edward  Montague  for 
the  term  of  ninety-nine  years  determinable  on  the  lives  of  three 
several  ])crsons  therein  named,  which  said  iron-works  and  fur- 
naces, and  other  premises  demised,  did  appear  to  be  a  part  only 
of  the  premises  comprised  in  the  Indenture  of  December,  1701, 
referred  to  in  the  said  power  of  leasing,  and  which  same  part  was 
by  the  same  Indenture  agreed  to  be  separately  and  distinctly  de- 
mised, although  upon  looking  into  such  new  lease,  No.  4,  and 
comparing  tlie  same  with  the  said  Indenture,  and  particularly 
with  the  articles  of  agreement  therein  recited,  it  did  appear  that 
the  very  same  premises  were  separately  and  distinctly  demised 

by  the  said   new  lease,  No.  4,  and  that  such  and  the 
[  *555  ]  same  rents  and  payments  were  thereby  reserved  as  *by 

the  said  Indenture,  and  the  other  Indentures,  and  arti- 
cles therein  recited  were  mentioned,  and  agreed  to  be  reserved, 
yet  the  said  Master  found  that  in  the  said  articles  there  was  con- 
tained not  only  a  covenant  on  the  part  of  the  lessee  to  maintain, 
keep,  and  leave  the  said  premises  in  sufficient  repair,  but  that 
there  were  also  contained  therein  several  other  covenants  on  the 
part  of  the  lessee,  with  regard  to  the  time  or  manner  of  cutting 
or  felling  the  several  coppices  and  underwoods  thereby  agreed  to 
be  demised,  the  not  putting  any  stock  or  cattle  into  such  coppice," 
and  the  like,  all  in  their  nature  tending  to  the  preservation,  good 
management  and  improvement  of  the  said  premises  ;  and  that  no 
such  covenants  on  the  part  of  the  lessee  were  contained  in  the 
said  new  lease,  No.  4 ;  and  as  by  the  said  power  of  leasing  it 

(rt)  This  was  acquiesced  in. 


APPENDIX.  505 

seemed  to  be  particularly  intended  that  all  leases  to  be  made  of 
the  said  iron-works  and  furnaces,  and  other  the  premises  men- 
tioned in  the  aforesaid  Indenture,  or  l)y  any  of  the  deeds  therein 
recited,  should  be  made,  not  only  under  such  rents  and  payments, 
but  likewise  under  such  covenants  and  agreements  as  were  therein 
particularly  agreed  on,  and  the  aforesaid  several  covenants  on 
the  part  of  the  lessee,  being  wholly  omitted  in  the  said  new  lease. 
No.  4,  for  that  reason  the  said  Master  conceived  such  new  lease 
not  to  be  a  valid  lease,  nor  warranted  by  the  power. (6) 

(5)  And  as  to  the  lease,  No.  5,  whereljy  Palace  Farm,  and 
other  lands  in  Bewley,  were  demised  to  Edward  Montague  for 
the  like  term  of  ninety-nine  years  determinable  on  the  same  lives, 
amongst  which  premises  so  demised  were  contained  other  part  of 
the  premises  comprised  in  the  said  Indenture  of  the  29th  Decem- 
ber 1701,  and  tliereby  also  agreed  to  be  separately  and  distinctly 
demised  ;  and  although  upon  looking  into  such  lease,  No.  5,  and 
comparing  the  same  with  the  said  Indenture  of  the  29th  Decem- 
ber 1701,  the  same  rents  and  payments  did  appear  to  be  reserved 
by  the  said  lease.  No.  5,  as  by  the  said  Indenture  of  the  29th 
December  1701,  and  the  Indentures,  &c.  therein  recited,  was 
mentioned,  and  agreed  to  be  reserved  in  respect  of  such  part  of 
the  said  premises  as  were  comprised  in  the  Indenture  of  the  29tli 
December  1701,  yet  it  appearing  that  such  lease,  No.  5,  di^lso 
contain  some  other  lands  and  premises  not  comprised  in  the  said 
Indenture  of  the  29th  December  1701,  and  particuhxrly  certain 
lands  therein  mentioned,  for  that  reason  the  said  Master  did  con- 
ceive tliat  tlie  said  lease,  No.  5,  was  not  a  valid  lease,  nor  war- 
ranted l)y  the  power.(t') 

*(6)  And  as  to  the  five  several  leases,  following,  viz.  [  *556  ] 
No.  6,  No.  7,  No.  8,  No.  9,  and  No.  10,  whereby  cer- 
tain messuages,  &c.  were  severally  demised  unto  the  sai  J  Edward 
Montague,  for  the  like  term  of  ninety-nine  years  determinable  on 
'  the  same  three  lives,  it  having  been  objected  before  the  said  Mas- 
ter, that  the  several  farms  and  premises  so  as  aforesaid  separately 
demised  by  the  said  five  several  leases,  had  not  been  usually  de- 
mised for  one,  two,  or  three  lives,  or  for  years  determinable  upon 
the  death  of  one,  two  or  three  person  or  persons,  and  no  old 

(6)  This  was  acquiesced  in.  (c)  This  was  acquiesced  in. 

Vol.  II.  43 


506  SUGDEN  ON   POWERS. 

leases,  nor  any  other  evidence  having  been  laid  before  hira  to 
show  that  sucli  several  farms  and  premises  had  been  usually  so 
demised,  the  said  Master  did  for  that  reason  conceive  that  none 
of  the  said  five  leases  numbered,  6,  7,  8,  9,  and  10,  did  appear  to 
be  valid  leases,  or  to.be  wan-anted  by  the  power. (rf) 

(7)  But  as  the  five  several  other  new  leases  following,  viz. 
No.  11,  No.  12,  No.  1'^,  No.  14,  and  No.  lo,  whereV)y  the  mes- 
suages, &c.  therein  mentioned  were  severally  demised  to  Edward 
Montague  for  the  like  term  of  ninety-nine  years  determinable 
upon  the  same  three  lives,  to  maintain  and  support  which  said 
five  new  leases,  five  several  old  leases  had  been  produced  before 
the  said  Master,  by  which  it  did  appear  that  the  several  mes- 
suages, &c.  so  as  aforesaid  separately  demised  by  the  said  five 
new  leases,  were  in  like  manner  separately  demised  by  the  said 
five  old  leases,  but  upon  looking  into  such  five  old  leases,  and 
comparing  the  same  with  the  five  new  leases,  he  found,  that  in 
each  of  the  said  five  old  leases,  or  counterparts,  and  also  in  each 
of  the  said  five  new  leases,  there  was  contained  a  covenant  on 
the  part  of  the  lessee  to  bear,  pay,  and  discharge  all  taxes,  rates- 
duties,  and  impositions  whatever  ;  and  that  in  all  the  said  five 
old  leases  there  was  also  contained  a  covenant  on  the  part  of  the 
lessee  to  maintain,  keep,  and  leave  the  demised  premises  in  suffi- 
cient repair  ;  and  that  in  some  of  the  said  five  old  leases  or 
counterparts  there  were  likewise  contained  covenants  on  the  parts 
of  the  lessees  to  spend  and  lay  upon  the  demised  premises  all  the 
dung,  manure,  or  compost  thence  arising ;  and  also  not  to  demise, 
alien,  or  assign  any  part  of  the  said  demised  premises  without 
the  license  jn  writing  of  the  lessor,  his  heirs,  or  assigns  ;  but 
that  no  such  covenants  as  last  mentioned  were  contained  in  any 
of  the  said  five  new  leases :  however,  it  appearing  that  the  same 
several  ^nd  respective  ancient,  usual,  and  accustomed  rents, 
boons,  and  services  which  bad  been  usually  paid  for  and  in  re- 
spect of  the  several  messuages  and  premises  separately^ 
[  *557  ]  *demised  by  the  said  five  new  leases,  were  severally 
reserved  by  such  five  new  leases,  and  thereby  made  to 
continue  due  and  payable  yearly  during  the  continuance  of  such 
leases,  and  no  other  particular  objection  having  been  made  to 

{(I)  This  was  acquiesced  in. 


APPENDIX.  507 

any  of  the  said  fivQ  new  leases  but  what  arose  from  the  omission 
of  such  several  covenants  as  were  before  mentioned,  the  said 
Master  did  conceive,  that  notwithstanding  such  objection,  the 
aforesaid  five  new  leases  numbered,  11^  12,  13,  14,  and  15,  were 
each  of  them  valid  and'  effectual  leases,  warranted  by  the  pow- 
er, (e) 

(8)  But  as  to  the  remaining  nine  leases,  viz.  No.  16,  17,  18, 
19,  20,  21,  22,  23,  and  24,  whereby  certain  farms,  &c.  were  re- 
spectively demised  to  Edward  Montague,  for  the  like  term  of 
ninety-nine  years,  determinable  on  the  same  three  lives  ;  to  main- 
tain and  support  which  nine  new  leases,  nine  several  old  leases 
or  counterparts,  had  been  produced  before  the  said  Master,  by 
which  it  did  appear  that  the  several  messuages  and  premises,  so 
as  aforesaid  separately  demised  by  the  said  nine  new  leases,  were 
xn  like  manner  separately  demised  in  and  by  the  said  nine  old 
leases  ;  but  upon  looking  into  such  nine  old  leases  and  comparing 
the  same  with  nine  new  leases,  the  said  Master  found,  that  in 
every  one  of  the  said  nine  old  leases,  there  were  contained  cove- 
nants on  the  part  of  tlie  lessees  to  bear,  pay,  and  discharge  all 
taxes,  rates,  duties,  and  impositions  whatsoever  ;  and  also  to 
maintain,  and  keep,  and  leave  the  demised  premises  in  sufficient 
repair  ;  and  that  in  several  of  the  said  nine  old  leases  there  were 
likewise  contained  covenants  on  the  part  of  the  lessees  to  s^tind 
or  lay  upon  the  said  demised  premises  all  the  dung,  manure,  or 
compost  thence  arising*;  and  also  not  to  demise,  alien,  or  assign 
any  part  of  the  said  demised  premises  without  the  licence  in  writ- 
ing of  the  lessor,  his  heirs  or  assigns ;  and  more  particularly  in 
the  old  lease,  bearing  date  the  20th  day  of  A])ril  16G4,  produced 
before  him,  to  maintain  and  support  the  new  lease,  No.  iS,  there 
was  contained  a  covenant  on  the  tenants'  part  to  grind  at  the 
mill  of  the  said  lessor,  situate  in  Bewlcy,  all  the  corn  and  grain 
which  they  should  spend  in  and  upon  the  said  demised  premises ; 
*and  that  in  another  old  lease,  bearing  date  the  20th  day  of  April 
1688,  produced  before  the  said  Master,  to  maintain  and  support 
the  new  lease.  No.  20,  there  was  contained  a  like  covenant  on 
the  tenant's  part  to  grind  all  his  corn  at  the  lessor's  mill  afore- 

(e)  This  was  not  acquiesced  in;  and   tlie  Master's   opinion  in  this  respect  was 
over-ruled  by  reason  of  the  omission  of  the  covenant  to  repair. 


508  SUGDEN   ON   POWERS. 

jiaid  ;  all  wliich  covenants  on  tlic  parts  of  tlio  said  lessees,  as 
they  did  in  their  natnre  tend  to  the  j)rescrvation,  man- 
[  *oi>S  ]  agcnient,  *and  improvement  of  the  ])remises  demised, 
were  for  that  reason  for  the  benefit,  advantage,  and 
security,  not  only  of  tlie  immediate  lessors,  but  likewise  of  all 
persons  claiming  after  them  ;  but  he  found  that  neither  the  said 
covenant  to  bear,  pay,  and  discharge  all  taxes,  &c.  nor  any  of  the 
several  other  covenants  therein  before  particularly  mentioned 
were  contained  in  any  of  the  said  nine  new  leases,  and  that  the 
like  covenant  for  grinding  corn  in  the  said  mill  was  not  contained 
in  either  of  the  said  two  new  leases  respectively  numbered  19, 
20  ;  and  as  the  said  several,  ancient,  usual,  and  accustomed  rents 
wliich  were  usually  paid  under  the  said  nine  old  leases,  did  by 
means  of  the  said  covenant  for  the  tenants'  paying  and  discharg- 
ing all  rates  and  taxes  become  clear  and  net  rents,  freed  from 
any  deduction  whatsoever,  and  for  want  of  such  covenants,  the 
several  rents  reserved  by  the  said  nine  new  leases  must,  he  con- 
ceived, be  subject  and  liable  to  a  deduction  thereout,  upon  ac- 
count not  only  of  the  land-tax,  but  likewise  of  other  rates  and 
taxes  which  tended  manifestly  to  the  prejudice  of  the  persons 
who  since  the  decease  of  the  Duke  had  been,  or  might  thereafter 
be  seized  of  the  demised  premises  :  Under  those  circumstances, 
the  Master  craved  leave  to  submit  to  the  judgment  of  the  Court, 
how  far  the  several  rents  which  appeared  to  be  nominally  re- 
served by  the  nine  new  leases,  for  the  want  of  such  covenants  for 
the  tenants'  paying  and  discharging  all  rates  and  taxes,  could  or 
ought  to  be  deemed,  in  substance  and  effect,  the  same  "several  an- 
cient rents  as  were  usually  paid  by  virtue  of  the  said  nine  old 
leases,  ^hich  seemed  to  be  expressly  required  by  the  said  power 
of  leasing ;  and  consequently,  whether  the  said  nine  new  leases 
were  valid  leases,  and  warranted  by  the  power  or  not ;  and  more 
particularly,  whether  the  said  two  new  leases,  respectively  num- 
bered 19  and  20,  were  not  invalid  for  want  of  the  like  covenants 
on  the  tenants'  part  for  grinding  their  corn  at  the  lessor's  mill  as 
were  contained  in  the  before-mentioned  two  old  leases,  the  same 
appearing  to  be  in  its  nature  a  l)oon  or  service. (/) 

An  exception  was  taken  by  the  defendants  to  the  report,*  for 

(/  )  The  nine  leases  were  held  to  be  invalid. 


APPENDIX.  509 

that  the  said  Master  had  by  his  report  certified,  that  he  conceived 
that  the  five  several  leases  therein  mentioned  by  the  numbers  11, 
12, 13, 14,  and  15,  were  valid  leases,  and  warranted  by  the  power; 
whereas  the  defendants  insisted  that  he  ought  to  have  certified 
that  the  said  five  leases  were  not  valid  leases. 

His  Lordship  held  the  said  defendants'  said  exception  to  be 
good  and  sufiBicient,  and  therefore  ordered  that  the  same 
should  stand  and  *be  allowed.  According  to  Lord  [  *o59  ] 
Mansfield's  note  of  this  case,  the  Chancellor  took  some 
days  to  consider ;  and  declared  he  was  clear  upon  the  argument, 
but  took  time,  because  there  was  no  case  in  point.  The  more  he 
thought  of  it  the  more  he  was  convinced.  The  principle  he  rested 
upon  was,  that  the  estate  must  come  to  the  remainder-man  in  as 
beneficial  a  manner  as  ancient  owners  held  it.(,g) 

Upon  the  special  matter  of  the  said  report  relating  to  the 
several  new  leases  from  No.  16  to  No.  24,  inclusive,  his  Lordship 
declared,  that  all  the  said  leases  were  not  warranted  by  the 
power,  and  therefore  void. 


No.  14. 

Opinions  -upon  the  Case  of  Wykham  v.  Wykham. 

Your  opinion  is  desired  on  behalf  of  Philip  Thomas  Wykham, 
Esq.,  next  tenant  in  tail  male  under  the  will  of  Lord  Wenman, 
the  testator,  his  grandfather. 

1.  Whether  the  manor  and  estate  devised  to  trustees  to 
be  sold  passed  by  this  recovery,  the  trusts  of  the  will  not 
being  performed,  and  the  freehold  of  such  estates  being  in 
the  heir  of  the  surviving  trustee  ? 

2.  Whether  the  recovery  is  not  void  as  to  the  manors  and 
estates  granted  by  Lord  Wenman  to  trustees  for  the  purpose 
of  raising  Lady  Wenraan's  rent-charge  out  of  the  rents  and 
profits  of  the  manors,  <fec.  so  granted  ? 

We  think  that  an  estate  for  the  life  of  Lady  W.  in  remainder 
expectant  on  the  death  of  Philip  Lord  Wenman,  the  devisee, 
passed,  by  the  deed  of  8th  June  1706,  to  the  Earl  of  Abingdon 

(g-)  1  Bur.  122. 

43* 


r,10  SUGDEN   ON   POWERS. 

and  John  Morton,  Esq.  in  all  the  devised  freehold  premises:  as 
to  those  given  by  the  will  to  trustees  to  sell,  for  an  equitable 
estate,  and  as  to  the  residue  of  the  devised  freehold  premises,  for 
a  legal  estate ;  and  consequently,  as  the  trustees  of  the  deed  of 
June  176G  did  not  join  in  conveying  to  the  tenant  of  the  precipe, 
the  recoveries  were  bad  for  want  of  a  proper  tenant.  If  we  are 
right  in  this  opinion,  (for  wc  think  it  a  very  nice  point,)  then  the 
present  Mr.  Wykham's  remedy  is  by  bill  in  equity  against  the 
heir  of  the  surviving  devisee  in  trust,  and  the  present  trustees  of 
the  three  jointure  deeds,  and  against  the  heir  or  devisees  of  the 
late  Mr.  Wykham,  praying  an  account  and  to  be  let 
^  *560  ]  into  the  receipt  of  the  rents  of  all  the  devised  *estates, 
subject  to  keeping  down  the  interest  of  subsisting  mort- 
gages, and  subject  to  the  jointures  under  the  three  deeds. 

The  want  of  the  concurrence  of  the  heir  of  the  surviving  devisee 
in  the  conveyance  to  the  tenant  to  the  precipe,  did  not  affect  the 
recoveries ;  because,  the  devise  being  in  fee,  the  recoveries  might 
have  been  good,  if  there  had  been  a  proper  conveyance  of  the 
equitable  estate  to  the  tenant. 

R.  Richards. 

Launcelot  Shadwell. 
Lincoln's  Inn,  19  August  1800- 

I  am  of  opinion  that  the  jointuring  power  was  well  executed, 
and  that  the  recovery  was  void. 

As  to  the  estates  in  Oxfordshire  devised  to  the  trustees  by  Lord 
Wenman,  the  fee  certainly  passed  to  them  ;  as  to  the  other  estates, 
the  devisees  beneficially  interested  took  the  legal  estate,  and  the 
power  of  jointuring  was,  as  to  the  last-mentioned  estates,  a  com- 
mon-law power,  and  as  to  the  others,  a  mere  power  operating 
Ijy  way  of  declaration  of  trust  on  the  legal  estate  in  fee  in  the 
■trustees. 

The  power  embraces  all  the  estates,  and  clearly,  I  apprehend, 
•authorized  a  limitation  of  the  estate  of  freehold  to  trustees  during 
the  life  of  the  wife,  for  whom  the  jointure  was  raised.  If  it  were 
necessary  to  eflFectuate  the  intention,  I  should  think  the  power, 
although  indefinite  and  without  words  of  limitation,  sufificient  to 
authorize  a  limitation  of  the  fee ;  but  in  this  case  the  effect  of  a 
limitation  in  fee  would  be  at  law  to  defeat  the  remainders  over 


APPENDIX.  511 

after  the  estate  of  the  person  exercising  the  power,  which  could 
not  be  the  intention  ;  and  besides,  such  a  construction  must  be  put 
upon  the  power  as  would  enable  all  the  tenants  for  life  to  exercise 
the  power  in  a  manner  equally  beneficial,  as  no  advantage  was 
intended  to  be  given  to  one  over  another  beyond  priority,  and  if 
the  first  tenant  for  life  could  limit  the  legal  estate  in  fee,  then  the 
other  tenants  for  life  could  at  most  raise  equitable  jointures. 
For  these  reasons  I  think  it  clear  that  the  power  only  authorized 
a  limitation  of  the  estate  to  trustees  during  the  life  of  the  wife. 

Taking  this  to  be  the  construction  of  the  power,  the  next  ques- 
tion is,  whether  it  was  duly  executed.  The  deed  of  ITGG,  which, 
for  want  of  a  lease  for  a  year  or  livery  of  seisin,  could  only  o.perate 
as  an  execution  of  the  power,  first,  l)y  virtue  of  the  power  limits 
the  estate  to  the  Earl  of  Abingdon  and  Mr.  Morton  generally,  to 
hold  to  them  and  their  heirs  upon  trust  to  pay  to  Lady 
Wenman,  during  her  *life  only,  the  jointure  agreed  [  *561  ] 
upon,  and  Lord  Wenman  covenanted,  that  the  trustees 
(in  case  the  marriage  should  take  effect  and  Lady  W.  should 
survive  him)  should,  during  tlie  life  only  of  her  Ladyship,  peacea- 
bly enjoy,  &c.  Now  it  appears  to  me  clear,  that  upon  the  whole 
of  this  deed,  taken  together,  the  trnstces  took  an  estate  of  free- 
hold in  remainder  expectant  upon  the  decease  of  Lord  W.,  during 
the  life  of  Lady  W.,  and  no  longer.  It  must  be  admitted,  that 
the  power  might  have  been  exercised  wholly  by  way  of  covenant ; 
see  1  Ventr.  228,  Ray.  239,  3  Keb.  511.  And  it  would  be  rather 
a  refined  argument,  that  because  the  power  is  attempted  to  be 
formally  exercised,  the  covenant  shall  have  no  operation.  In 
truth,  the  covenants  are  of  equal  efficacy  in  the  exercise  of  the 
power  as  the  formal  words  of  appointment,  and  they  may  all 
therefore  well  be  considered  as  constituting  together  the  declara- 
tion of  the  appointor's  intention.  It  would  be  a  mistake  to  com- 
pare this  to  the  case  of  a  conveyance  of  a  fee,  with  covenants  for 
quiet  enjoyment  during  the  life  of  the  vendee  only.  But  if  it 
should  be  thought  that  the  trustees  took  a  fee,  and  that  such  a 
limitation  was  not  authorized  by  the  power,  yet  it  seems  quite 
open  to  contend  that  even  in  that  case  the  power  was  well  exeiv 
cised.  It  may  be  insisted  that  the  power  authorized  a  limitation 
of  all  or  any  part  of  the  estates  to  trustees  during  the  life  of  the 
intended  jointress,  and  for  no  other  estate :  that  therefore  the 


512  SUGDEN   ON   POWERS. 

estate  whicli  the  trustees  are  to  take  is  contained  in  the  will  itself, 
and  the  tenant  for  life  has  only  to  designate  the  land  and  the 
amount  of  the  jointure :  and  that  consequently  the  limitation  of 
the  fee  is  merely  void  and  the  trustees  take,  by  force  of  the  will 
itself,  an  estate  during  the  life  of  the  wife  only,  and  that  the  con- 
struction must  liave  been  the  same  if  the  tenant  for  life  had  limited 
no  estate.  A  devise  of  an  authority  is  within  the  statute  of  wills, 
and  when  the  power  is  exercised,  the  appointee  takes  under  the 
will  itself.  The  nearest  case  to  this  whicli  I  am  aware  of  is,  Peters 
V.  Morehead,  Fort.  339,  better  reported  in  Fitz.  15G,  by  the  name 
of  Peters  y.  Masham. 

For  tliese  reasons  I  am  of  opinion  that  the  power  was  well 
exercised  and  that  .the  trustees  took,  during  the  life  of  Lord  W., 
only  an  equitable  estate  in  the  lands  first  mentioned  in  Lord  W.'s 
will,  and  a  legal  estate  in  the  other  lands.  It  appears  to  me  also, 
that  the  further  jointures  were  well  raised,  at  least  in  equity,  but 
I  shall  not  stop  to  consider  them  minutely,  as  the  validity  of  the 
recovery  must  depend  on  the  deed  of  176G.  But  I  must  here 
observe,  that  I  take  it  to  be  quite  clear,  that  though 
[  *o62  ]  every  one  of  the  executions  should  be  deemed  *void,  yet 
equity  would  relieve  against  the  defective  execution  of 
the  power,  and  would  compel  the  remainder-man  to  make  a  good 
legal  jointure  of  1,000/.  a  ^^ear  to  Lady  W. 

The  recovery  suffered  by  the  first  tenant  in  tail  after  the  late 
Lord  W.'s  death,  was  suffered  without  the  concurrence  of  either 
the  heir  of  the  surviving  trustee'in  Lord  W.'s  will,  or  of  the  trus- 
tees in  the  jointure  deed,  or  of  Lady  W.  And  it  appears  to  me 
that  the  recovery  was  bad  for  want  of  a  good  tenant  to  the  pre- 
cipe. As  to  the  first  estates,  of  which  the  legal  fee  was  in  the 
trustees  of  the  will,  I  think,  that  whatever  construction  the  power 
may  receive,  it  can  hardly  be  deemed  badly  executed  as  to  them, 
so  as  not  to  give  the  equitable  estate  to  Lady  W.,  and  in  that 
case  the  recovery  would,  as  to  them,  be  void,  although  the  power 
should,  as  to  the  other  estates,  be  considered  to  be  defectively 
executed.  In  regard  to  the  estates  of  which  the  tenant  in  tail 
was  seised  at  law,  as  the  legal  tenants  for  life  did  not  join  in 
making  the  tenant  to  the  precipe,  the  recovery  of  course  cannot 
be  supported.      Indeed   the  question  will   turn  wholly  on  the 


APPENDIX. 


513 


validity  of  the  appointment,  for  if  that  was  good,  the  recovery 
must  of  course  be  bad. 

E.  B.  SuGDEN,  1808. 

The  phi  in  tiff  in  this  cause  must  contend  that  the  power  author- 
ized the  limitation  of  an  estate  of  freehold  during  the  life  of  the 
wife,  and  no  longer,  and  that  no  greater  estate  passed  by  the 
deeds  exercising  the  power.  The  defendant  will,.  I  suppose, 
endeavour  to  establish  one  of  three  points ;  viz.  1.  That  the 
power  merely  authorized  the  limitation  of  a  chattel  interest  dur- 
ing the  life  of  the  wife ;  or  2.  That  it  authorized  the  limitation 
of  a  fee,  and  that  a  fee  was  limited  by  the  deeds  of  appointment ; 
or  3.  That  if  it  authorized  the  limitation  of  a  life  estate,  a  fee 
was  limited  under  the  power,  which  consequently  was  an  excessive 
execution,  and  therefore  void  at  law.  Any  one  of  these  construc- 
tions would,  I  apprehend,  defeat  the  plaintiff's  claim.  If  the  first 
were  to  prevail,  clearly  the  execution  would  be  void,  and  even  a 
valid  execution  of  the  power  would  not  have  affected  the  validity 
of  the  recovery.  If  the  second  be  the  true  construction,  then  all 
the  subsequent  estates  would  be  turned  into  equitable  estates,  and 
tlie  recovery  would,  I  conceive,  be  good  as  an  equitable  recovery. 
The  tliird  construction  would  equally  defeat  the  i)laintiff,  unless 
the  Court  should  consider  the  excess  only  in  the  exccuticiras 
void. 

As  the  point  will  now  certainly  Jjc  decided,  it  is  no  consequence 
what  my  opinion  upon  this  case  is.     I  shall  therefore 
"rather  address  myself  to  the  arguments  which  may  be  [  *5G3  ] 
urged  in  favour  of  tlie  plaintiff's  claim. 

The  power  is  for  tenants  for  life  to  grant,  convey,  limit  or  ap- 
point all  or  any  part  of  the  estates  to  trustees,  upon  trust,  by  the 
rents  and  profits  thereof,  to  raise  and  pay  the  sum  mentioned  as  a 
jointure  for  any  wife  he  or  they  sliall  marry,  for  and  during  the 
term  of  each  such  wife's  life.  It  is  not  defined  what  estate  shall 
be  limited  to  the  trustees,  but  taking  the  words  altogetlier,  they 
clearly  point  t(j  an  estate  during  the  life  of  the  wife.  The  jointure 
is  for  her  life,  and  the  estate,  out  of  which  it  Is  to  arise,  must  be 
commensurate  witli  it.  To  restrain  the  trustees  to  a  chatttd  in- 
terest during  the  wife's  life,  would  be  to  introduce  words  not  in 
the  will,  for  the  purpose  not  of  effectuating  but  of  defeating  the 


514  SUGDEN   ON   POWERS. 

testator's  intention,  for  the  words,  "  by  .the  rents  and  profits," 
being  generul,  would,  if  it  were  necessary,  clearly  authorize  a 
sale,  and  a  term  for  years  would  fetch  less  money  than  a  life  estate. 
The  devise  of  this  authority  is  a  devise  within  the  statute  of  wills  ; 
when  the  power  is  executed,  the  estate  created  comes  in  lieu  of 
the  power,  and  the  limitation  must  be  read  as  if  originally  con- 
tained in  the  will.  If  the  words  of  this  power  were  to  be  turned 
into  a  devise,  it  seems  clear  that  the  estate  of  freehold  would  pass 
to  the  trustees,  during  the  wife's  life.  This  construction  is  sup- 
ported by  the  case  of  Mansell  v.  jVlansell,  reported  in  Wilmot,  36. 
There  an  estate  was  given  to  the  testator's  son,  Ed.  Mansell,  dur- 
ing his  life,  "  and  that  he  shall  be  capable,  with  the  consent  of 
trustees,  to  settle  a  jointure  on  the  woman  they  agree  to  in  writ- 
ing he  shall  marry  :  and  from  and  after  his  decease,''^  to  his  sons 
in  strict  settlement.  Under  tlie  power  an  estate  for  life  was  limit- 
ed. The  case  is  not  nearly  as  strong  as  ours ;  but  although  the 
execution  of  the  power  was  objected  to  on  a  great  many  grounds, 
yet  no  objection  was  made  on  this  head ;  and  Lord  C.  J.  Wilmot 
treated  it  as  clear,  that  the  power  authorized  the  limitation  of  the 
freehold  to  the  wife  for  life.  He  said,  (p.  53)  in  answer  to  an 
observation  that  the  execution  of  the  power  divested  nothing,  that 
it  postponed  the  remainder ;  it  turned  a  remainder  expectant 
upon  one  life  into  a  remainder  expectant  upon  two.  It  not  only 
removes  the  chance  of  the  enjoyment  a  life  back,  but  it  suspends 
the  power  of  acquiring  the  absolute  dominion  of.  the  estate  by  a 
I'ecovery.  In  another  case  (Churchman  v.  Harvey,  Ambl.  335,) 
where  the  power  authorized  a  limitation  for  life,  the  same  Judge 

thought  that  the  reason  might  be  to  prevent  the  next 
[  *o64:  ]  in  *remainder  suffering  a  common  recovery  during  her 

life  ;  and  this  may  be  urged  as  an  auxiliary  argument 
in  every  case  where  the  power  is  general,  and  tlie  testator,  as  in 
our  case,  had  a  strict  settlement  in  view. 

It  seems  clear,  therefore,  that  the  power  authorized  the  limita- 
tion of  an  estate  of  freehold.  But  the  intention  of  the  testator 
requires  that  no  greater  estate  sliould  be  limited  than  during  the 
wife's  life.  It  is  a  clear  general  rule  of  construction,  that  where 
in  a  power  words  of  inheritance,  or  words  tantamomit,  are  want- 
ing, a  clear  intention  must  appear  to  authorize  the  limitation  of  a 
fee.  .  A  power  to  sell  of  itself  authorizes  the  disposition  of  the 


APPENDIX.  515 

fee  from  the  nature  of  the  act  to  be  done  ;  but  wbcrc  the  act,  as 
in  our  case,  does  not  require  that  construction,  life  estates  only 
can  be  limited  ;  see  Casterton  v.  Sutherland,  9  Ves.  jun.  445  ; 
Rex  V.  The  Marquis  of  Stafford,  7  East,  521.  In  our  case,  so 
far  from  the  purpose  requiring  a  fee,  there  is  great  ground  to  con- 
tend that,  if  instead  of  being  to  the  trustees  generally,  the  power 
had  authorized  a  limitation  to  the  trustees  and  their  heirs  express- 
ly, yet  it  would  have  been  confined  to  the  wife's  life.  The  power 
must,  in  this  respect,  receive  the  same  construction  as  a  devise  ; 
and  it  is  clear  that  a  devise  to  trustees  and  their  heirs  generally, 
in  trust  for  a  person  for  life,  will  only  pass  the  estate  during  the 
life  of  the  cestui  que  trust,  where  there  is  a  devise  over  of  the 
estate  after  his  death  ;  Shapland  v.  Smith,  1  Bro.  C.  C.  75  ;  Syl- 
vester V.  Wilson,  2  T.  Rep.  444  ;  and  see  5  East,  171 ;  and  see 
Curtis  V.  Price,  12  Yes.  jun.  89  ;  and  that  line  of  cases,  where, 
by  construction,  even  in  deeds,  a  general  limitation  may,  it  seems, 
be  confined  in  favour  of  the  intention.  The  testator  in  our  case 
never  could  have  intended  to  authorize  the  limitation  of  a  fee. 
He  must  be  supposed  to  know  that  the  estate  created  must  take 
effect  as  if  limited  by  his  will.  Consider  how  the  limitations 
would  stand  if  a  fee  were  limited  under  the  power  :  To  Philip  for 
life,  remainder  to  trustees  in  fee,  for  securing  the  wife's  jointure, 
remainder  to  Thomas  Francis  for  life,  <fec.  The  testator  clssfly 
meant  all  his  devisees  to  take  the  legal  estate  ;  and  each  tenant 
for  life,  successively,  to  have  the  same  power  of  jointuring.  This 
will  be  effected  by  construing  the  power  as  enabling  the  limitation 
of  a  life-estate  only,  but  if  words  are  to  be  added,  in  oi'der  to  en- 
able the  gift  of  a  fee,  the  fii-st  tenant  for  life  would  be  enabled  to 
defeat  all  the  subsequent  limitations  at  law,  and  convert  them  into 
mere  equitable  estates,  which  of  itself  seems  a  suffi- 
cient 'oVyection  against  this  construction ;  see  Hale's  [  *565  ] 
argument  in  Jenkins  v.  Kemishe,  Hard.  398. 

For  these  reasons  it  would  seem  that  the  power  only  authorised 
the  limitation  of  an  estate  for  life.  Having  ascertained  the  true 
construction  of  the  power,  it  remains  only  to  inquire  whethev  it 
was  duly  executed.  The  first  appointment  for  making  such 
jointure  as  Philip  was  empowered  to  make  1>y  the  will,  appointed 
the  estate  unto  Lord  Abingdon  and  Mr.  Morton,  to  hold  to  them 
and  their  heirs,  upon  trust  to  raise  thejointui'e  ;  and  he  covenant- 


516  SUGDEN  ON  POWERS. 

ed  that  the  trustees,  in  case  his  intended  ^v'ife  should  survive  him, 
should  after  his  decease  and  during  the  life  only  of  his  wife,  enjoy 
the  estate.  It  is  a  general  rule  of  construction  upon  all  deeds, 
that  the  intent  must  be  gathered  from  every  part  of  the  deed,  and 
that  no  part  be  rejected,  unless  in  tlie  case  of  repugnancy.  It 
should  never  be  lost  sight  of  that  this  is  not  a  conveyance.  Pro- 
vided that  the  solemnities  required  to  the  execution  of  the  power 
be  duly  attended  to,  there  is  scarcely  a  mode  in  Avhieh  the  power 
may  not  be  executed.  A  power  may  be  executed  by  a  covenant 
to  levy  a  iine,  or  suffer  a  recovery,  and  a  fine  or  recovery  levied 
or  suflered  accordingly  ;  Earl  of  Leicester's  case,  1  Vcntr.  278  ; 
Herring  v.  Brown,  2  Show.  185.  So  in  this  case  Philip,-  Lord 
Wenman,  might  have  covenanted  that,  when  he  went  to  St.  Paul's, 
or  did  any  other  indifferent  act,  the  appointment  should  take 
effect ;  and  of  course  the  power  might  have  been  executed  simply 
by  a  covenant.  So  Lord  Hardwicke  held  that  a  covenant  might 
operate  as  a  release  of  an  interesse  termini;  Saltern  v.  Melhuish, 
Ambl.  250.  From  all  this,  it  seems  clear,  that  the  words  of  ap- 
pointment in  our  case,  and  the  words  of  covenant,  may  operate 
together,  and' must  all  be  attended  to,  in  order  to  get  at  the  opera- 
tion of  the  appointment.  Suppose  the  appointment  had  been  made 
to  the  trustees  and  their  heirs,  for  the  estate  hereinafter  men- 
tioned, would  it  not  be  clear  that  the  covenant  would  confine  the 
estate  to  the  wife's  life,  to  take  effect  after  the  husband's  death  ? 
And  is  not  our  case  precisely  the  same  in  effect  ?  In  general, 
certainly  an  appointment  by  deed  must,  as  to  the  words  limiting 
the  estate,  receive  the  same  construction  as  a  conveyance  at  com- 
mon law  ;  but  this  rigid  construction  has  been  relaxed  where  the 
words  merely  regulate  or  modify  tlic  estate,  as  the  words  equally 
to  he  divided,  Rigden  v.  Vallicr,  3  Atk.  731,  2  Yes.  252 ;  Good- 
title  V.  Stokes,  1  Wils.  341,  Say,  67.  The  same  doctrine  may  be 
applied  to  our  case. 

Sliould  the  fee,  however,  bo  held  to  pass  under  the 
[  *566  ]  deed,  I  fear  it  could  *not  be  contended  that  the  excess 
only  would  be  deemed  void  at  law,  but  I  think  the  case 
might  be  supported  on  the  decision  in  Peters  v.  Morehead,  refer- 
red to  in  my  first  opinion.  If  the  power  should  be  deemed  badly 
executed  under  the  first  deed,  I  do  not  see  any  chance  of  sup- 
porting it  under  either  of  the  others.     Should  the  power  be-  held 


APPENDIX.  517 

to  be  well  executed,  and  the  trustees  to  have  taken,  during  the 
life  of  the  wife  only,  the  recovery  as  to  the  estates  of  which  Lord 
W.  was  legal  tenant  for  life  will  of  course  be  invalid.  This  ques- 
tion, however,  will  not  be  discussed  at  law.  It  appears  to  me, 
upon  further  consideration,  that  even  if  the  plaintiiF  prove  suc- 
cessful at  law,  yet  there  will  be  considerable  difficulty  in  his  way 
as  to  the  estate  devised  to  the  trustees  in  fee. 

The  case  should  contain  an  accurate  copy  of  the  devise  of  the 
two  estates,  and  of  the  power  and  deeds  of  appointment.  In  re- 
gard to  the  lands,  which  I  apprehend  passed  under  the  will  to  the 
trustees  in  fee,  the  Judges,  I  take  it,  will  certify  that  the  trustees 
in  the  deeds  of  appointment  took  no  estate  in  them,  as  the  power 
was  in  regard  to  them  merely  equitable  ;  and  then  the  question, 
as  to  the  recovery  of  these  lauds,  will  be  decided  when  the  cause 
goes  back  on  the  equity  reserved. 

E.   B.   8UGDEN,  1808. 


No.  15. 

Phelp  V.  Hay.Qi) 

Rolls,  18th  May  1778.  ^ 

lUh  March  1747. — By  the  agreement  made  previously  to  the 
marriage  between  the  Rev.  Abraham  Phelp  and  Ayliffe  Tufton, 
after  reciting  the  treaty  for  the  marriage,  it  was  agreed  that 
Ayliflc  Tafton  should  have  power,  as  well  before  as  after  such 
marriage,  either  to  make  an  absolute  sale  of  her  lands  and  chat- 
tels, and  with  the  money  by  such  sale  to  purchase  other  lands  and 
chattels  any  where  in  England,  and  convey  unto  the  trustees 
therein  named,  their  heirs,  executors,  &c.  or  unto  such  other  per- 
sons as  the  said  Ayliffe  Tufton  and  his  mother  should  nominate, 
as  well  all  such  lands  and  hereditaments  wherein  the  said  Ayliffe 
Tufton  then  had  an  estate  of  freehold  or  inheritance  in  fee  simple 
or  fee  tail,  or  for  terms  of  years,  or  otherwise  howso- 
ever ;  as  also  such  lands  and  chattels  which  might  *be  [  *567  ] 

(/t)  Vide  supra,  vol.  1,  p.  482.  494:  vol.  2,  p.  53. 

Vol.  II.  44 


518  suGDEN  ON  po^\t:rs. 

purchased  as  aforesaid,  to  and  for  the  use  and  benefit  of  the  said 
Abraham  Phelp  and  Aylifle  '■J'lifton,  and  tlic  issue  of  their  two 
bodies,  in  sucli  manner  and  foi-m,  and  by  and  after  such  rates, 
shares,  and  proportions,  either  jointly  with  the  said  Abraham 
Phelp,  or  alone,  separate  and  apart  from  him,  as  the  said  Ayliffe 
Tufton  should  think  proper  and  fit  to  do. 

^th  and  10th  February  1749. — By  Indentures  of  Lease  and  Re- 
lease, and  by  a  fine,  Mr.  and  Mrs.  Phelp  (the  marriage  having 
been  solemnized)  conveyed  her  sixth  part  of  certain  real  estates 
unto  Sir  Ceorge  Hay,  his  heirs  and  assigns  for  ever,  in  trust, 
nevertheless,  to  the  use  of  the  said  Abraham  Plielp,  and  Ayliffe 
his  wife,  and  llieir  assigns,  during  their  lives,  and  the  life  of  the 
longer  liver,  remainder  to  the  use  of  such  person  and  persons, 
and  for  such  estate  and  estates  as  the  said  Aylifi'e  Phelp  should 
in  manner  thereby  required,  appoint ;  and  in  default  of  such  ap- 
pointment, in  trust,  to  and  for  the  use  of  the  right  heirs  of  the 
said  Aylifle  Phelp  for  ever.  Note. — The  fine  was  declared  to  be 
to  the  use  of  the  said  George  Hay,  and  his  heirs,  in  trust,  never- 
theless, to,  for,  and  upon  the  uses  and  trusts  before  expressed. 

13//i  February^  1755. — By  an  Indenture  between  Aylifie  Phelp, 
then  the  widow  of  the  said  Abraham  Phelp,  of  the  one  part,  and 
the  said  Sir  George  Hay,  of  the  other  part,  after  reciting  the  ar- 
ticles of  14th  March,  1747,  and  the  Indentures  of  the  9th  and 
10th  of  February,  1749,  and  the  fine  levied  accordingly  ;  and 
also  reciting,  that  by  the  Indenture  of  Release,  a  greater  power 
was  given  to  the  said  Aylifle  Phelp  of  disposing  and  limiting  her 
said  lands  and  estates  than  was  given  or  intended  to  be  given  to 
her  by  the  said  articles  made  previous  to  her  marriage,  it  being 
the  intention  of  such  articles,  and  of  the  parties  thereto,  that  the 
said  Aylifi'e  Phelp  should  limit,  settle,  and  assure  her  said  lands 
and  estates  unto  and  upon  the  issue  of  the  bodies  of  them  the  said 
Abraham  Phelp  and  Ayliffe,  in  case  they  should  have  any  such; 
and  the  said  Aylifi'e  Phelp  having  then  three  cliildren  l)y  the  said 
Abraham  Phelp,  to  wit,  Charles  Tufton  Phelp,  her  eldest  son, 
Jane  Phelp,  her  daughter,  and  James  Phelp,  her  youngest  son, 
It  is  witnessed,  that  for  the  settling  and  assuring  the  said  sixth 
part  of  the  said  premises  upon  the  children  and  issue  of  the  said 
Ayliffe  Phelp  by  the  said  Abraham  Phelp,  according  to  the  said 
articles  of  agreement,  the  said  Aylifi'e  Phelp,  by  virtue  of"  the 


APPENDIX.  519 

power  unto  her  given,  as  well  by  the  marriage  articles  as  Ijy  the 
Indenture  of  Release,  did  grant,  limit,  direct  and  appoint  that  the 
said  Sir  George  Hay,  and  his  heirs,  should  from  thence- 
forth stand  seised  of  *the  said  undivided  sixth  part  of  [  *56S  ] 
the  said  premises,  and  that  the  said  fine,  and  the  uses 
thereof,  should  enure  to  the  use  of  the  said  Ayliffe  Phelp  and  her 
assigns  for  life,  remainder  to  the  use  of  the  said  Charles  Tufton 
Phelp,  James  Phelp,  and  Jane  Phelp,  or  to  any  or  either  of  them, 
their,  his  or  her  heirs  and  assigns,  in  such  manner  and  form,  and 
by  and  after  such  rates,  shares  and  proportions,  and  charged  and 
chargeable  with  such  sum  and  sums  of  money,  unto  and  amongst 
any  or  either  of  them  the  said  Charles  Tufton  Phelp,  James 
Phelp,  and  Jane  Phelp,  and  at  such  time  and  times  as  she  the  said 
Ayliffe  Phelp  should  by  any  deed,  or  l)y  her  will,  to  be  duly  exe- 
cuted in  the  presence  of  and  attested  by  three  or  more  credible 
witnesses,  give,  grant,  devise,  limit,  direct  or  appoint ;  and  for 
want  of,  and  in  default  of  such  appointment,  to  the  use  of  the  said 
Charles  Tufton  Phelp,  James  Phelp,  and  Jane  Phelp,  and  his 
and  their  several  and  respective  heirs  and  assigns,  as  tenants  in 
common,  and  not  as  joint-tenants. 

Charles  Tufton  Phelp  died  under  age,  and  without  issue. 

18th  May,  1772.— The  said  Ayliffe  Phelp,  by  her  will,  duly 
executed,  declared  her  will  and  meaning  to  be,  and  she  did  th^irc- 
by,  by  virtue  of  the  proviso  aforesaid,  direct  and  appoint,  that  the 
said  Sir  George  Hay  should  stand  seised  of  the  said  sixth  part  of 
the  said  estates,  in  trust,  by  mortgage,  to  raise  and  pay  thereout 
to  testatrix's  daughter,  Jane  Phelp,  her  executors,  administrators 
and  assigns,  within  six  months  after  testatrix's  decease,  the  sum 
of  2,000/.,  and  subject  thereto,  to  the  use  of  the  said  testatrix's 
son,  James  Phelp  and  his  assigns,  for  life ;  remainder  to  the  said 
Sir  George  Hay  and  his  heirs,  during  the  life  of  the  said  James 
Phelp,  in  trust,  to  preserve  contingent  remainders,  with  remain- 
der, after  the  decease  of  the  said  James  Phelp,  to  his  issue  in 
general  tail :  and  in  default  of  such  issue  to  the  use  of  testatrix's 
daughter  Jane  Phelp,  for  life  ;  remainder  to  the  said  Sir  George 
Hay,  and  his  heirs,  during  her  life,  in  trust  to  preserve  contingent 
remainders ;  with  remainder  after  the  decease  of  the  said  Jane 
Phelp,  to  her  issue  in  general  tail,  and  in  default  of  such  issue,  to 
the  use  of  testatrix's  mother,  Frances  Tufton,  and  her  assigns,  for 


620  SUGDEN   ON   POWERS. 

licr  life,  with  remainder  to  tlie  testatrix's  own  right  heirs,  with 
power  for  the  said  George  Uay,  and  his  heirs,  witli  the  consent 
of  the  person  for  the  time  being  entitled  to  the  estate,  to  sell  the 
same,  and  to  purcliase  other  lands  to  be  settled  to  the  same  uses. 
ISlh  3Iai/j  1778. — By  a  decree  in.  a  cause  wherein  the  said 
James  Phelp  was  plaintiff,  and  the  said  Sir  George  Hay,  and 

Charles  Blicke,  and  Jane  his  wife  (late  Jane  Phelp,) 
[  *569  ]  were  defendants,  the  Master  of  *tlie  Rolls  declared, 

that  he  was  of  opinion,  that  under  the  will  of  Ayliffe 
Phelp,  the  said  Charles  Blicke,  and  Jane  his  wife,  in  her  right, 
were  entitled  to  the  sum  of  2,000/.  to  be  raised  by  way  of  mort- 
gage of  the  estate  in  question,  with  interest  from  six  months  after 
testatrix's  death ;  and  that,  subject  to  such  mortgage,  the  said 
James  Phelp  was  under  the  said  will  entitled  to  an  estate  in  tail 
general  in  the  said  estate,  with  remainder  to  the  said  Jane  Blicke 
in  tail  general ;  and  that  all  the  subsequent  or  other  limitations 
in  the  said  will  concerning  the  said  estate  were  void ;  and  that 
no  valid  appointment  of  such  the  reversion  in  fee  of  the  said  estate 
as  aforesaid  having  been  made  by  the  said  Ayliffe  Phelp,  subse- 
quent to  the  Indenture  of  13th  February,  1755,  according  to  the 
power  therein  reserved  to  her,  the  appointment  made  by  such 
indenture  of  13th  February,  1775,  did,  as  to  such  reversion  in  fee 
of  the  said  Leicestershire  estate  as  aforesaid,  become  absolute ; 
and  that  under  the  appointment  made  by  the  said  Ayliffe  Phelp 
by  the  said  Indenture  of  the  13th  of  February,  1755,  such  rever- 
sion in  fee  of  the  said  estate  belonged  to  her  three  children, 
Charles  Tuftou  Phelp,  James  Phelp,  and  Jane  Blicke,  their  heirs 
and  assigns,  as  tenants  in  common,  in  equal  third  parts ;  and  that 
the  said  Charles  Tufton  Phelp  being  dead,  intestate,  and  without 
issue,  his  undivided  third  part  descended  to  the  said  James  Phelp, 
as  his  brother  and  heir  at  law ;  and  that  by  the  means  and  in 
manner  aforesaid,  the  said  James  Phelp  was  then  entitled  to  him 
and  his  heirs  to  two-third  parts  of  the  reversion  of  the  said  estate 
so  subject,  and  in  manner  aforesaid  ;  and  the  said  Jane  Blicke  to 
her  and  lier  heirs  to  the  remaining  third  |xirt  of  such  reversion  as 
aforesaid  of  the  said  estate. 

Various  proceedings  were  had  in  the  cause.     The  Master  found 
that  the  legal  estate  was  in  the  heir  of  Sir  George  Hay,  and  h.e 


APPENDIX.  521 

joined  with  James  Phelp,  who  suffered  a  recovery  of  the  estate,  in 
a  mortgage  for  securing  the  2,000/.  and  interest. 

It  appears  by  the  Registrar's  book(i)  that  the  plaintiff  submit- 
ted to  the  Court,  that  it  was  the  true  intent  of  the  articles  of  14th 
March  1747,  and  the  Indenture  of  13th  February,  1755,  that 
Aylifle  should  have  power  to  limit  and  appoint  an  estate  of  inheri- 
tance either  in  fee  simple  or  tail  to  her  issue,  but  that  it  was  never 
meant  that  she  should  have  power  to  limit  any  smaller  estate  for 
her  issue  than  an  estate-tail ;  and  that  the  plaintiff  was  advised 
that  there  was  no  limitation  contrary  to  the  intention, 
but  that  he  had  an  estate-tail  *given  to  him  subject  to  [  *570  ] 
the  payment  of  2,000/.  The  defendant  of  course  sub- 
mitted the  contrary. 


No.  16. 

Roberts  v.  DixicelL 

Reg.  Lib.  B.  1738,  fol.  119.(A;) 

The  limitation  was  to  the  use  of  such  of  the  children  of  the 
marriage,  for  such  estates,  and  in  such  shares  and  proportioE*,^  as 
the  husband  and  wife  or  survivor  should  appoint. 

The  husljand  ha\-ing  survived  his  wife,  by  his  will  appointed 
the  estate  unto  the  plaintiff,  his  only  son,  his  heirs  and  assign?, 
forever,  upon  condition  that  he  and  they  should  pay  his  only  sister 
of  the  whole  blood,  Elizabeth-Mary  Roberts,  3,000/.  and  50/. 
a-year  for  maintenance,  until  she  attained  twenty-one,  or  married, 
and  the  testator  charged  the  estates  therewith ;  and  in  case  the 
plaintiff'  refused  to  pay  the  same,  then  he  appointed  the  estate 
itself  to  the  daughter,  her  heirs  and  assigns,  for  ever ;  2,000/.  to 
be  paid  to  Elizabeth-Mary  at  twenty-one,  or  marriage ;  but  if  she 
died  before,  the  said  2,000/.  to  be  paid  to  his  daughter,  Mary 
Roberts,  by  another  marriage,  at  twenty-one,  or  marriage ;  and 
he  declared  the  3,000/.  to  be  in  satisfaction  of  the  1,000/.  as 
stated  in  2  Eq.  Ca.  Abr. 

(i)  Lib.  Reg.  B.  1777,  fol.  537.  (fc)  Vide  supra,  vdI  1   p.  t86. 

44* 


o22  SDGDEN   ON   POWERS. 

It  was  decreed,  that  -'tlie  |>lahitiir  was  entitled  by  virtue  of  the 
appointment,  subject  to  tlie  charge  of  2,000/.  part  of  the  sum  of 
3,000/.  therein  charged  for  Elizabeth-Mary,  and  of  50/.  a-year  for 
her  maintenance ;  and  his  Lordship  doth  decree,  that  the  trustees 
do  accordingly  convey  the  same  to  him,  so  subject  as  aforesaid ; 
and  the  defendant,  Elizabeth-Mary,  is  to  be  at  liberty  to  apply  to 
the  Court  for  raising  and  paying  the  sum  of  2,000/.  when  the  same 
shall  become  due ;  but  his  Lordship  declared  that  the  limitation 
over  of  the  said  sum  of  2,000/.  to  the  said  Mary  Roberts  by  the 
will,  is  void,  and  as  to  the  sum  of  1,000/.  residue  of  the  said  sum 
of  3,000/.  mentioned  in  the  will,  his  Lordship  declared  that  the 
appointment  thereof  by  the  said  will,  for  satisfaction  of  a  debt 
due  from  him  by  covenant  contained  in  his  marriage  settlement, 
was  void,  and  that  defendant,  Elizabeth-Mary,  is  entitled  to  have 
satisfaction  for  the  sum  of  1,000/.  with  interest  at  four  per  cent, 
from  the  death  of  her  father,  as  a  special  creditor."  And  the 
necessary  directions  were  given  by  the  decree  accordingly. 


,    No.  17. 
[  *571  ]  *Newport  v.   Savage. 

Michaelmas  Term,  1T3G.(/) 

«  A.  HAD  a  power  by  will  to  jointure  any  wife  by  limiting,  &c.  to 
and  for  her  use,  or  in  trust  for  her,  in  lieu  of  her  jointure,  or  part 
of  her  jointure,  all  or  any  part  of  the  estate  of  which  he  was  ten- 
ant for  life.  A.,  reciting  his  power,  settles,  in  trust  for  his  wife, 
for  her  jointure,  the  land  contained  in  the  power  for  99  years  if 
she  should  so  long  live.  It  was  decreed  by  the  Chancellor,  that 
the  power  was  well  executed,  and  he  said,  that  though  in  strict- 
ness of  law  this  would  not  have  been  a  good  execution  of  the 
power,  yet  a  court  of  equity  ought  to  regard  the  substance  of 
things.  When  all  parties  are  mere  volunteers,  they  must  be 
bound  by  the  law ;  yet  where  they  are  purchasers  for  a  valuable 
consideration,  and  the  execution  is  defective,  the  Court  will  su|> 
ply  it,  and  it  does  no  injury,  for  it  carries  it  no  farther  than  the 


(/)  Vide  supra,  vol.  1,  p.  493. 


APPENDIX.  523 

person  himself  might  have  done  ;  and  even  in  cases  of  purchasers, 
the  Court  will,  in  favour  of  one,  supply  non-execution  of  powers ; 
and  the  reason  of  their  not  doing  it  generally  is,  because  it  does 
not  appear  that  the  intention  of  the  party  was  to  carry  the  powers 
into  execution.  It  was  objected,  that  this  was  such  an  estate  that 
this  is  no  bar  of  dower,  but  the  power  is  not  to  give  an  estate  in 
bar  of  dower ;  but  A.  was  left  at  large  to  make  a  provision  for 
his  wife.  Besides,  in  the  settlement  made  on  her,  it  is  generally 
said  to  be  in  bar  of  her  dower,  and  therefore  as  it  will  be  an 
equitable  execution  of  the  power,  so  it  will  be  an  equitable  bar  of 
dower. 

Upon  searching  the  Registrar's  book,(m)  I  find  that  the  power 
was  "  for  "Walter,  when  he  should  have  any  estate  in  possession  in 
the  premises  for  his  life,  by  virtue  of  the  limitation  aforesaid,  by 
any  deed,  to  assign,  limit,  or  appoint  to  or  for  the  use  of  or  in 
trust  for  any  woman  or  women  that  should  be  his  wife,  for  her 
life,  in  lieu  of  jointure,  all  or  any  part  of  the  premises,  to  take 
effect  from  his  decease."  He  limited  a  term  to  trustees  for  99 
years  in  trust  for  his  wife.  The  bill  was  to  have  the  jointure 
confirmed,  and  to  stay  proceedings  at  law  by  the  remainder-man. 
The  defendant  stated  a  trial  at  nisi  prius ;  and  that  a  case  was 
reserved  for  the  King's  Bench,  and  he  prayed  for  liberty  to  pro- 
ceed in  the  cause.  It  was  decreed  that  the  plaintiff  should-  be 
quieted  in  the  estate  comprised  in  the  jointure-deed 
'during  so  much  of  the  term  of  ninety-years  as  she  [  *5T2  ] 
should  live,  and  the  defendant  was  to  pay  unto  the 
plaintiffs  their  costs  of  the  suit ;  and  the  injunction  formerly 
granted  in  tliis  cause,  for  stay  of  the  defendant's  proceedings  at 
law  against  the  plaintiffs,  was  to  be  continued. 


No.  18. 
Lord  Muskerrij  v.  Chinnenj  and  Others.(ii) 

1.  This  settlement  comprises  merely  the  estate  of  Lady  M., 
and  not  all  that,  for  Guilaharty  is  not  included.     The  estate  of 

(m)  Lib.  Reg.  1736,  fol.  33. 

(n)  Vide  aupra,  toI.  1,  p.  523;  toI.  2,  p.  336.  355.  393. 


524  SUDGEN   ON  POWERS. 

Lord  M.  does  not  appear  to  have  been  settled.  It  probably  was 
considerable,  for  a  short  time  after  those  leases  he  was  elevated 
to  the  peerage.  Only  a  portion  of  Lady  M.'s  estate  was  demised 
by  those  leases.  Some  of  the  denominations  appear  to  have  been 
suflcred  to  go  according  to  the  other  uses  of  the  settlement. 

The  settlement  was  after  marriage,  and  not  in  pursuance  of 
any  previous  agreement,  and  therefore  there  is  nothing  to  correct 
it  by. 

The  object  of  the  parties  appears  to  be  by  means  of  Lady  M.'s 
estate  to  disencumber  the  family  estate  of  Lord  M.  All  the  pro- 
visions in  this  settlement  appear  to  look  to  that  object.  The 
children's  portions  are  charged  on  this  estate.  The  power  to 
raise  20,000/.  is  thrown  upon  it.  And  in  addition  to  these  sums, 
to  be  raised  in  the  way  of  direct  charge,  a  power  is  given  to  Lord 
M.  (and  to  Lord  M.  alone,  not  to  the  successive  tenants  for  life, 
as  in  ordinary  leasing  powers)  to  make  leases  for  any  indefinite 
period,  and  to  take  fines,  and  to  raise  money  in  that  way  without 
parting  with  the  estate,  still  retaining  all  the  manorial  and  seig- 
norial  rights,  and  with  these  the  influence  and  consequence  which 
large  territorial  possessions  never  fail  to  bring  with  them.  Power 
is  therefore,  not  directly  given  to  dispose  of  the  estate  absolutely, 
or  out  and  out ;  but  to  deal  with  it  in  such  a  way  as  to  make  it 
subservient  to  the  great  object  of  the  settlement,  and  the  necessi- 
ties of  Lord  M.  These  observations,  which  a  perusal  of  the  deed 
has  suggested  to  my  mind,  ought  to  be  kept  in  view  in  deciding 
on  the  validity  of  the  acts  done  under  this  settlement.  This 
brings  me  to  a  consideration  of  the  settlement. 

At  tliat  time  several  portions  of  tlie  lands  comprised  in  it  were 
actually  in  lease,  and  that  with  the  knowledge  of  the  parties,  and 

of  those  who  prepared  the  deed. 
[  *olo  ]  *In  private  settlements  a  leasing  power  is  deemed 
necessary  for  the  benefit  of  the  estate,  which  might 
otherwise  go  uncultivated.  That  being  the  object,  the  power  is 
confined  by  the  necessity  which  gave  it  birth,  and  the  leases 
granted  under  it  are  what  are  called  husbandry  leases  ;  and  such 
power  is  always  given  to  all  those  in  succession,  the  imljccility  of 
whose  estate  would  not  enable  them  to  carve  such  an  interest  out 
of  the  estate  of  which  they  were  in  possession. 

In  that  respect  the  power  on  which  the  questions  in  this  case 


APPENDIX.  525 

turn,  differs  from  the  ordinary  leasing  power  given  for  the  benefit 
of  the  estate ;  for  it  is  not  extended  to  those  to  whom  the  benefit 
of  the  estate  would  require  that  a  leasing  power  should  be 
extended. 

It  is  clear,  therefore,  that  the  settlors  must,  in  the  creation  of 
this  power,  have  had  some  other  object  in  view  than  the  benefit  of 
the  estate,  or  the  interest  of  those  who  were  to  succeed  to  it. 

We  shall  be  satisfied  of  this  wlien  we  consider  the  form  of  this 
power,  and  compare  it  with  those  leasing  powers  which  are  intro- 
duced into  settlements  with  a  view  to  the  benefit  of  the  estate. 

They  arc  in  their  extent  limited  and  definite,  confined  within 
the  limits  Avhich  their  object  requires.  They  are  surrounded  by 
safeguards,  and  clogged  with  conditions,  to  prevent  their  abuse. 
They  are  to  be  made  in  possession  and  not  in  reversion. 

The  term  is  limited  ;  the  rent  is  to  be  the  best  that  can  be  had ; 
fines  and  foregifts  are  strictly  prohibited ;  waste  is  guarded 
against ;  and  the  execution  of  counterparts  is  enjoined. 

If  Ave  look  to  the  power  in  question,  we  shall  find  that  all  these 
requisites  to  an  ordinary  leasing  power  are  wanting.  Power  is 
given  to  Lord  M.  from  time  to  time,  and  at  all  times  during  his 
life,  to  lease  or  demise  all,  every,  or  any  'part  or  parts,  parcel  or 
parcels  of  the  aforesaid  towns,  &c.  for  any  time  or  term  of  years, 
or  lives,  and  witli  or  without  covenants  for  renewal ;  and  iisr^se 
of  the  determination  of  all  or  any  of  the  aforesaid  leases  or  lease 
respectively,  from  time  to  time,  to  make  new  or  olher  leases 
thereof  in  manner  aforesaid,  and  loiUi  or  witliout  any  fine  or 
fines,  as  he  shall  think  fit. 

Now  lot  us  consider  what  this  power  expressly  authorizes.  It 
authorizes  him  to  make  leases  ;  and  first,  as  to  the  subject-matter 
of  these  leases  ;  it  is  "  all,  ccery  or  any  part  or  parts,  parcel  or 
parcels  of  the  lands.'"  It  is  clear  that  the  terms  of  this  part  of 
the  power  authorize  leases  of  every  or  any  part  without  excep- 
tion ;  without  regard  to  how  they  were  before  held  or  enjoyed  ; 
for  if  he  is  restricted  in  any  way  as  to  that,  or  pre- 
cluded from  making  leases  of  any  part  by  *anything-  [  *57'1  ] 
■whatsoever,  he  has  not  that  power  which  the  deed  pro- 
fesses to  give  him. 

It  seems  to  me  clear  therefore  that  he  is  enabled  to  make  leases 
of  those  parts  wluch,  at  tlic  time  of  the  settlement  were  already 


526  SUGDEN    ON    POWERS. 

in  lease.  It  is  not  prcseribed  that  these  leases  shall  be  in  pos- 
session and  not  in  reversion,  nor  is  there  any  liuiitation  or  quali- 
fication to  this  power  in  that  respect. 

Next  as  to  the  term  ;  it  is  indefinite,  *"  for  any  term  of  lives  or 
years,  with  or  without  covenants  for  renewal."  Nothing  can  be 
more  extensive. 

The  only  limit  to  his  power  of  disposition  is,  that  he  shall  not 
alien  the  fee,  so  as  to  part  with  the  reversion,  and  with  it  the 
seignorial  rights. 

And  lastly,  he  is  to  make  those  leases  "  with  or  without  fines, 
as  he  shall  think  fit." 

The  power  of  taking  fines  to  any  extent  necessarily  leaves  him 
absolute  power  as  to  the  amount  of  the  rent.  Neither  is  there 
any  injunction  on  him  not  to  make  the  lessees  dispunishable  of 
waste. 

It  is  impossible,  therefore,  not  to  sec  that  this  power  differs 
both  in  form  and  substance,  both  in  the  end  in  view,  and  the 
means  by  which  that  end  is  to  be  accomplished,  from  the  ordinary 
leasing  powers. 

That  this  difi'erence  was  intentional,  and  not  by  accident,  igno- 
rance, or  mistake,  will  appear  conclusively  by  adverting  to  the 
leasing  power  given  in  the  subsequent  part  of  the  deed,  and  which 
is  in  the  usual  form. 

Is  it  possible,  when  we  compare  these  two  powers,  not  to  be 
satisfied  that  the  departure  from  the  ordinary  form  of  leasing 
power  was  dojie  deliberately  and  from  design  ? 

The  trustee  in  it  (who  probably  prepared  it)  was  a  King's 
Counsel  at  the  Bar,  whom  we  all  knew  to  be  in  considerable 
practice. 

The  parties  had  full  power  to  make  this  settlement,  and  the 
maxim  "  cujus  est  dare  ejus  est  disponere"  must  not  be  forgotten, 

Sucli  being  the  case,  when  this  power  comes  to  be  considered 
by  a  court  of  law,  that  court  can  only  look  at  the  instrument 
"  with  legal  eyes,"  and  see  what  its  terms  authorize.  It  is  not 
for  that  court  to  say  whether  it  is  or  is  not  reasonable,  if  the 
terras  of  it  are  clear  and  unambiguous. 

If  it  be  alleged  that  the  deed  is  different  from  the  intent  of  the 
parties,  it  will  Ijc  for  a  court  of  equity  to  say  whether  it  will 
reform  the  deed.      That,  according  to  Lord  Thurlow  in  Shel- 


APPENDIX.  527 

burn  and  'Incliquin,  1  Bro.  Cha.,  would  require,  '■'■  irre-  [  *575  ] 
fragable  proof."  Whether,  even  if  there  were  that 
proof,  your  Lordship  would  hold  yourself  at  liberty  to  reform 
this  deed  at  the  end  of  fifty-six  years,  and  against  purchasers  for 
valuable  consideration,  who  had  on  the  faith  of  it  been  fifty-six 
years  in  possession,  it  will  be  for  your  Lordship  to  say. 

I  come  now  to  consider  these  leases,  made,  as  I  hare  said, 
fifty-six  years  ago,  now  at  the  end  of  that  period,  long  after  the 
death  of  the  lessors,  and  after  their  personal  estate^  out  of  ivhich 
satisfaction  should  be  made  to  tliese  lessees,  lias  been  disposed  of . 

And  here  I  would  observe,  once  for  all,  that  the  cases  cited 
arising  upon  the  ordinary  leasing  power  have,  in  my  opinion,  no 
application  to  this  case.  They  are  cases  arising  on  powers,  in 
which  the  interest  of  the  remainder-man  is  to  be  taken  into  con- 
sideration. 

But  before  I  enter  on  the  question  how  far  these  leases  are 
conformable  to  the  power,  I  must  first  meet  an  objection  that  has 
l)een  made,  viz.  that  these  leases  were  not  intended  to  be  made 
in  execution  of  the  power.  It  is  true  the  power  is  not  referred 
to  ;  but  that  is  not  necessary  if  the  lease  cannot  take  eflect  but 
under  the  power,  and  if  the  parties  must  have  known  that.  Now, 
it  is  impossible  that  an3-body  could  have  imagined  that  Lord  M.'s 
life-estate  could  last  for  999  years.  It  is  impossible  therefore7to 
suppose  that  these  leases  could  have  been  intended  to  be  served 
out  of  that  life-estate.  This  is  the  conclusion  which  the  law 
comes  to  ;  and  which  is  necessary,  vt  res  mag-is  valeat. 

The  first  lease  was  made  the  26th  of  August,  1779,  to  William 
Shirley,  in  consideration  of  1,000/.  It  is  for  999  jjrears,  at  20/. 
rent.  It  excepts  all  royalties,  manors,  etc.,  with  liberty  to  en- 
ter, «tc.  and  to  hunt,  fish,  fowl,  and  hawk  ;  jjowers  of  distress  and 
re-entry ;  and  a  covenant  for  the  i)urposc  of  strengthening  this 
lease,  that  Lord  and  Lady  M.  should  levy  such  fine  as  Shirley's 
counsel  should  advise. 

The  term  in  this  lease  is  witliiu  tlie  powers  ;  nor  can  any  objec- 
tion be  raised  to  it,  except  that  the  lease  to  Howell  was  not  de- 
termined ;  and  therefore  that  it  was  a  concurrent  lease. 

Now  Howell's  lease  was  granted  before  the  settlement,  to  the 
knowledge  of  the  settlors  ;  yet  they  give  express  authority  to 
lease  all,  every,  or  ani/  part  of  the  settled  estates.     This,  in  my 


628  SUGDEN   ON   POWERS. 

opinion,  clearly  authorizes  a  concurrent  lease,  or  a  lease  of  the 
reversion,  &e.  ;  and  supposing  the  case  of  Coventry  v.  Coventry 
to  be  only  sustainable  on  the  ground  that  there  was  a  sufficient 
indication  of  intent  that  concurrent  leases  might  be 
[  *o1C)  ]  made,  here  is  the  most  express  declaration  that  words 
can  convey  of  that  intent ;  for  without  tliis  the  words 
could  not  possibly  be  satisfied. 

The  next  lease  is  made  to  Roger  Shirley,  18th  October  1779, 
for  999  3'ears,  in  consideration  of  2,000/.  and  150/.  rent.  It  con- 
tains libcrfi/  la  burn  the  surface  without  the  penalty  in  the  acts ; 
and  it  contains  a  clause  of  surrender.  It  is  contended  that  to 
pare  and  burn  the  surface  is  ivaste.  There  is  no  authority  for 
that.  The  acts  against  burning  only  call  it  "  bad  husbandry  ;" 
as  such,  they  impose  a  penalty  "  if  done  loithout  the  consent  of  the 
landlord  f  and  that  penalty  is  to  be  given  to  him.  The  act  ex- 
empting barren  land  that  has  been  improved  from  tithes  for  a  cer- 
tain time,  only  gives  that  exemption  provided  that "  improvemenf^ 
was  not  made  by  burning  the  land,  unless  with  the  landlord's 
consent.  There  is  land  which  cannot  be  reclaimed  unless  by 
paring  and  burning  the  surface  ;  and,  as  this  is  the  only  lease 
which  gives  tliat  permission,  it  is  to  be  presumed  that  it  contained 
land  to  which  paring  and  burning  was  necessary.  It  is  not  to  be 
imagined  that  one  who  had  so  great  an  interest  in  the  land  as  a 
lease  for  999  years,  would  adopt  any  course  of  husbandry  which 
would  be  injurious  to  his  own  interest. 

I  come  now  to  consider  the  clause  of  surrender.  In  a  lease  of 
so  long  a  term,  and  for  which  so  large  a  fine  has  been  paid,  such 
a  clause  can  have  little  effect.  If  the  lessee  were  to  surrender, 
he  would  lose  his  fine  of  2,000/.  It  is  objected  that  he  may  ex- 
haust the  land  and  then  surrender  his  lease.  Upon  what  ground 
can  such  a  supposition  rest  ? 

On  the  eficct  of  such  a  clause  in  the  case  of  the  ordinary  limited 
leasing  power,  it  would  be  very  desirable  to  have  your  Lordship's 
opinion. 

The  King's  Bench  and  Common  Pleas  have  both  decided  that 
a  clause  in  a  lease,  under  the  ordinary  leasing  power,  enabling 
the  tenant  to  surrender,  giving  the  landlord  a  year's  notice  in 
writing,  vitiates  the  lease.  On  this  point  there  is  a  diversity  of 
opinion  among  the  Judges. 


APPENDIX.  529 

The  objections'  to  this  clause  are  these  : 

First,  there  is  a  -want  of  mutuality,  the  tenant  having  a  right  to 
surrender,  and  the  lessor  having  no  right  to  revoke.  The  con- 
verse of  this  existed  in  Cardigan  v.  Montague.  To  this  I  think 
it  is  satisfactorily  answered,  that  there  is  no  such  principle  of  law 
Qs  that  in  every  contract  there  must  be  that  mutuality  which  is 
contended  for  here  ;  and  that  in  a  lease,  for  every 
advantage  given  to  the  lessee  *thcrc  must  be  a  corre-  [  *577  ] 
lative  advantage  given  to  the  lessor.  In  Cardigan  v. 
Montague  the  landlord  had  a  power  to  revoke.  It  is  said  the 
landlord  is  fast,  whilst  the  tenant  is  loose.  Now,  in  cases  under 
the  Statute  of  Frauds,  that  often  exists  ;  and  it  is  no  objection 
either  to  a  bill  for  a  specific  execution  of  a  contract,  or  to  an 
action  at  law  upon  a  contract,  within  the  Statute  of  Frauds,  that 
the  contract  lias  been  only  signed  by  the  defendant  and  not  by 
the  j)hiintiflF,  and  therefore,  not  binding  on  the  latter.  So  in 
uses  not  under  the  Statute  of  Frauds,  it  is  no  objection  that  the 
landlord  is  bound  and  the  tenant  is  loose. 

In  the  case  of  Dann  v.  Spurrier,  7  Ves.  jun.,  a  contract  was 
•ntered  into,  by  which  the  defendant  agreed  to  grant  the  plaintiff" 
a  lease  "  for  seven,  fourteen,  or  twenty-one  years,"  without  say- 
ing at  whose  option.  Lord  Eldon  sent  it  to  law,  on  a  case,  for 
the  opinion  of  the  Judges,  whether  the  power  of  determining  the 
contract  at  the  end  of  the  seven  or  fourteen  years  was  in  both 
landlord  and  tenant,  or  in  whom.  The  Judges  of  C.  B,  gave 
their  opinion  that  it  was  in  the  tenant  alone,  and  not  in  the  land- 
lord, wlio  was  bound  for  the  twenty-one  years,  though  the  tenant 
was  not  bound  beyond  the  seven  years.  And  Lord  Eldon,  on 
this,  decreed  a  sj^ecific  execution  of  the  contract  against  the  land- 
lord. So  in  Price  v.  Dyer,  17  Ves.  on  a  similar  contract,  Sir 
William  Grant  held  the  same  thing.  So  in  Webb  v.  Dixon,  9 
East,  15,  a  lease  had  been  granted  "  for  fourteen  or  seven  years.'" 
At  the  end  of  the  seven  years  tlic  landlord,  conceiving  he  had  an 
option  of  determining  the  lease,  brought  his  ejectment.  It  was 
tried  before  Mr.  Justice  Lawrence,  who  nonsuited  the  plaintiff",  on 
the  ground  that  the  option  of  determining  the  lease  at  the  cud  of 
the  seven  years  was  with  tlic  tenant  alone,  and  not  witli  the  land- 
lord ;  and  of  this  opinion  was  the  whole  Court,  on  a  motion  to  set 
aside  the  nonsuit. 

Vol.  II.  45 


530  SUGDEN   ON  TOWERS. 

Next,  it  is  objected  as  a  practical  inconvenience,  that  if  by  the 
fall  of  prices,  or  other  cause,  tlie  tenant  has  a  bad  bargain  and 
cannot  pay  his  rent  out  of  the  land,  he  cau  throw  the  lease  up, 
and  the  landlord  cannot  hold  him  to  it.  J3ut  it  aj)pears  to  me  a 
strange  cause  of  complaint  that  a  landlord  cannot  insist  on  keep- 
ing a  tenant  wlio  is  una])le  to  pay  his  rent.  In  Ireland  the  great 
difliculty  is  to  get  rid  of  a  tenant  who  cannot  pay  his  rent ;  and 
our  predial  disturbances  and  crimes  grow  out  of  attempts  to  do  so. 
Yet  this  is  the  objection  which  Lord  Manners  threw  out  in  an  ex- 
tra-judicial o})inion  in  a  case  before  him. 

I  come  now  to  tlie  ground  on  which  the  judgment  of 
[  *5T8  ]  the  King's  *Bcnch,  as  delivered  by  Mr.  Justice  Jebb, 
rests  ;  and  a  more  cxtraoi-dinary  ground  on  which  a  de- 
cision can  rest,  that  is  to  destroy  a  great  part  of  the  leasehold  in- 
terests in  some,  of  the  counties  in  the  south  of  Ireland,  never  came 
within  my  knowledge.  It  is  this :  The  lessee  may  exhaust  the 
land  by  repeated  cropping,  and  may  then  throw  it  upon  the  land- 
lord's hands.  It  is  true,  that  is  possible ;  but  if  that  possibility 
avoids  a  lease  for  lives,  it  must  avoid  every  lefase  where  that  pos- 
sibility exists.  Now,  in  what  case  may  not  the  tenant  exhaust 
the  land,  and  leave  it  so  on  the  landlord's  hands  ?  The  land 
may  be  exhausted  completely  in  ten  years,  and  tlie  probability 
is  much  greater  that  a  tenant  who  has  only  ten  years  to  come  ; 
who  has  no  certainty  of  a  renewal ;  who  will  be  charged  a  higher 
rent  on  a  new  lease  if  he  has  improved  the  land,  and  a  lower  one 
if  he  has  exhausted  it,  will  adopt  the  latter,  than  tliat  one  who  has 
a  permanent  interest  for  three  lives  should  do  so.  Yet  the  conse- 
quence of  the  decision  in  the  King's  Bench  would  be,  that  every 
lease  for  ten  years  would  be  void.  It  strikes  me  that  the  decision 
is  one  that  cannot  be  sustained. 

Having  thus  considered  the  specific  objection  to  these  leases,  I 
shall  advert  to  the  construction  which  the  plaintiff's  counsel  puts 
on  the  leasing  power. 

The  power  is  "  to  lease  or  devise  for  any  time  or  term  of  years 
or  lives,  and  with  or  without  covenants  for  renewal ;  and  in  case  of 
the  determination  of  ail  or  any  of  the  aforesaid  leases,  from  time 
to  time,  to  make  new  or  other  leases  thereof,  in  manner  aforesaid, 
and  icith  or  without  any  fine  or  fines,  as  he  shall  think  fit^ 

It  is  contended  that^  the  words  "  with  or  without  any  fine  or 


APPENDIX.  531 

fines,  as  he  shall  think  fit,"  are  to  be  carried  back  to  the  words 
^'  with  or  without  covenants  for  renewal,"  and  for  this  the  case  of 
Doe  V.  Martin  has  been  cited.  But  the  case  of  Doe  v.  Martin 
does  not  decide  tha't  the  words  are  to  be  referred  to  the  first 
clause,  in  ■  exclusion  of  and  passing'  over  the  last  antecedent. 
They  must  therefore  at  least  also  apply  to  the  last  antecedent 
member  of  the  sentence,  by  which  he  is  authorized,  on  the  deter- 
mination of  any  of  the  aforesaid  leases,  from  time  to  time,  to  make 
new  or  other  leases ;  and  such  new  or  other  leases  may  therefore 
be  made  with  or  without  fines.  It  is  contended  that  the  words 
"with  fines"  ought  to  be  confined  to  leases  with  covenants  for 
renewal,  which  are  usual  in  Ireland,  and  are  to  be  intended  cove- 
nants for  perpetual  renewal ;  and  these  fines  to  be  the  fines  usu- 
ally taken  on  the  fall  of  lives  in  such  leases.  But  that  construc- 
tion cannot  be  made  ;  for  to  whatever  the  word  "with" 
is  *to  1)0  applied,  the  word  "  without"  is  also  to  be  ap-  [  *579  ] 
plied,  and  vice  versa.  And  therefore  he  might,  accord- 
ing to  that,  make  leases  with  covenants  for  perpetual  renewal 
without  any  fine,  and  without  any  rent.  Now,  how  would  this 
benefit  the  remainder-man  ?  But  again,  the  "  new  or  other" 
leases  that  arc  to  be  made,  are  to  be  made  "  with  or  without  fines, 
as  he  shall  think  fit ;"  and  those  leases  are  to  be  made  on  the 
determination  "  of  any  of  the  aforesaid  leases."  It  is  impossrble 
to  imagine  that  the  settlors  contemplated  the  determination  of  a 
lease  for  lives  renewable  for  ever  in  the  lifetime  of  Sir  T.  Deane  ; 
yet  he  and  he  alone  is  to  make  the  neio  leases  in  that  event ;  and 
such  new  leases  (not  made  on  the  fall  of  lives  under  a  covenant 
for  perpetual  renewal,  but  on  the  natural  determination  of  deter- 
minable leases)  may  be  made  with  fines.  Thus  then,  the  donee 
of  the  power  would  be  authorized  to  take  fines  on  the  new  leases, 
though  not  on  the  original  ones.  According  to  that  construction. 
Sir  T.  Deane  might  make  leases  for  two  years,  and  on  their  deter- 
mination might  make  new  leases  with  fines.  This  cannot  be  the 
construction.  The  words  "  with  or  without  fines"  must,  I  admit, 
Ijc  referred  to  each  member  of  the  sentence,  the  first  as  well  as 
the  last ;  and  the  leases  mentioned  in  the  first  member  may  be 
made  "  with  or  without  fines,  as  he  shall  think  fit."  Then  what 
are  tlic  leases  in  the  first  member  of  the  sentence  ?  They  are 
?eases  "  for  any  terms  or  term  of  years  or  lives;"  and  such  leases 


032  SUODEN   ON   POWERS. 

may  be  cither  with  or  without  covenants  for  renewal,  and  with  or 
without  lines.  They  may  be  made  without  covenants  for  renewal, 
and  with  fines.  But  it  is  said  that  the  words  of  this  power  are 
ambiguous,  and  that  the  Court  will  exercise  its  astutia  to  put  such 
construction  on  it  as  will  not  enable  the  tenant  for  life  to  destroy 
the  estate  of  the  remainder-man.  But  words  cannot  be  said  to 
be  ambiguous  on  which  only  one  construction  can  be  i)ut  that  is 
reconcilable  to  the  rules  of  grammar  or  the  principles  of  common 
sense ;  and  surely  that  construction  would  be  equally  destructive 
of  the  interest  of  the  remainder-man  which  authorizes  a  lease  for 
lives,  renewable  for  ever,  without  either  rent  or  fine ;  and  that  is 
the  construction  sought  to  be  put  on  the  words  of  this  power. 
Besides,  if  even  this  power  could  be  so  construed  as  not  to  afl"ect 
the  interest  of  the  remainder-man,  there  is  another  power  (that 
of  providing  portions)  which  completely  puts  it  in  the  power  of 
the  tenant  for  life  to  destroy  the  interest  of  the  remainder-man. 

That  power  is  general,  without  any  limit.  Now,  in  the 
[  *580  ]  case  *of  Long  v.  Long,  5  Yes.  jun.,  where  there  was  a 

similar  unlimited  power  of  charging  portions,  the  tenant 
ibr  life  directed  the  estate  to  be  sold  out  and  out,  and  the  entire 
money  to  be  divided  among  his  younger  children;  and  it  was  held 
that  hj  might  do  so,  although  the  estate  was  limited  to  his  first 
and  other  sons,  and  although  it  was  contended  that  the  remainder 
limited  to  the  eldest  son  manifested  an  intention  that  he  should 
get  something.  I  am  therefore  clearly  of  opinion  that  these  leases 
are  good  at  law. 

I  shall  now  proceed  to  consider  how  this  case  may  be  dealt 
with  in  a  court  of  equity.  Taking  it  for  granted  that  the  intent 
of  the  parties  is  to  govern,  we  may  inquire  what  was  that  intent. 
I  have  already,  in  the  outset,  mentioned  my  opinion  that  the  object 
of  this  extensive  power  was  to  enable  Sir  Tilson  Deane  to  raise 
money  on  long  leases.  To  a  certain  extent  that  might  have  been 
practicable,  and  beyond  that,  not  so.  To  insure  the  raising  the 
sum  required,  a  power  is  given  to  raise  by  sale  or  mortgage,  or 
charging  any  sum  "not  exceeding^''  20,0001.  Thus,  the  sum  to 
be  raised  off  the  estate  was  not  to  exceed  20,000/.  This  intent 
is,  I  think,  ascertained  by  the  manner  in  which  Sir  T.  Deane 
acted  on  the  powers  given  him.  The  acts  of  the  parties  are  not 
admissible  to  affect  the  construction  of  the  deed  ;  but  I  think  tliev 


APPENDIX.  533 

may  be  admitted  to  explain  wliat  the  parties  had  in  view  by 
entering  into  the  deed.  Now,  it  appears  that  Sir  T.  Deane 
understood  that,  though  the  powers  given  him  were  extensive  and 
one  of  them  unlimited,  yet  that  they  were  given  him  in  the  confi- 
dence tliat  he  would  not  use  them  beyond  what  their  object 
required.  Accordingly  we  find  him,  after  raising  about  10,000/. 
by  fines  on  these  leases,  abstaining  from  raising  under  the  power 
of  sale  or  mortgage  more  (except  the  amount  of  one  year's  inter- 
est) than  sufficient  to  complete  in  all  the  20,000/.  He  did,  as  I 
have  said,  exceed  it  a  little,  from  perhaps  being  una])le  to  prevail 
on  Chinnery  to  break  the  sum  he  had  to  lend.  But  this  having 
taken  place  after  the  leases,  the  surplus  cannot  be  visited  on  the 
lessees.  The  two  powers,  though  diflcrent  in  their  natures,  may 
be  considered  as  given  for  the  same  purpose,  namely,  the  raising 
that  sum  which,  and  which  only,  it  was  agreed  should  be  raised 
out  of  the  lands.  And,  after  all,  what  is  a  long  (or  perpetual) 
lease,  at  a  small  rent,  and  a  large  fine,  but  a  sale  of  so  much  of 
the  inheritance  ?  Chinnery  has  now  been  settled  with  ;  therefgre 
no  question  can  arise  as  to  him ;  and  it  was  only  he  that  could  be 
affected  by  the  excess  above  the  20,000/. 

*I  have  thus  submitted  to  your  Lordship  my  views  of  [  *o81  ] 
this  case ;  and  I  submit  them  with  all  i-espect  to  your 
Lordship's  better  judgment. 

I  have  the  honour  to  be,  <tc.  &c. 

F.  Joy. 

I  have  already  said  that  it  would  be  most  desirable  to  have 
your  Lordship's  opinion  on  the  clause  of  surrender  in  leases  made 
under  the  ordinary  leasing  power,  and  on  the  reasons  given  by 
Mr.  Justice  Jebb  in  the  judgment  which  he  pronounced.  In  my 
mind  those  reasons  are  far  from  satisfactory.  Very  many  (per- 
haps most)  leases  in  the  south  of  Ireland  contain  such  clauses,  the 
landlords  there  considering  them  beneficial  to  the  estate  and  to 
the  remainder-men ;  as  a  better  rent  is  obtained,  and  as  none  but 
solvent  tenants  who  mean  fairly  and  conscientiously  to  pay  their 
rent,  if  the  land,  by  the  exercise  of  their  industry,  will  enable 
them  to  do  so,  require  such  a  clause.  In  the  case  lately  before 
the  twelve  Judges,  (which  has  gone  off  by  the  death  of  the  last 
life  in  the  lease)  that  clearly  appeared  ;  and  the  jury  found  that 

45' 


oM  SUGDEN   ON    POWERS. 

a  more  solvent  tenant  could  be  procured,  and  that  the  clause  was 
not  injurious  to  tlic  reuuiinder-nian,  but  tlie  contrary,  as  a  better 
tenant  could  l)e  got.  I  understand  the  tenant  as  holding  this 
language  to  his  landlord :  "  1  think  the  rent  you  demand  is  high, 
still  1  hope  by  a  little  exi)enditure  and  a  great  deal  of  industry, 
to  be  able  to  pay  it.  But  if  in  this  I  am  disappointed,  I  will  not 
keep  from  you  your  property  longer  than  I  can  pay  you  the  con- 
sideration which  I  undertook  to  give  you  for  it."  I  can  see 
nothing  inequitable  in  that. 

No.  19. 

The  Law  as  regards  Illusory  Appoinlment  before  the  1  TF".  4,  c. 

46.(0) 

1.  At  law  it  was  clear  that  any  share,  however  nominal  or  il- 
lusory, would  satisfy  the  terms  of  the  power.  The  gift  of  a 
ring(/?)  or  a  sliilling(^)  was  a  good  legal  execution  of  the  power, 
although  the  fund  were  100,000/.;(r)  whereas  in  equity  5s. (5)  or 
ten  guineas,(^)  or  any  other  sum,  merely  illusory,  with  reference 
to  the  amount  of  the  fund,  and  the  number  of  the  objects  amongst 
whom  it  was  to  be  distributed,  would  have  been  void.     But  all 

the  interests  given  to  the  child,  contingent  as  well 
[  *582  ]  as  vested,   were   taken   into   consideration. (w)      *We 

shall  have  occasion  to  consider  how  far  this  distinction 
between  the  legal  and  equitable  execution  of  such  a  power  can  be 
defended  upon  principle.  (.«) 

2.  This  equity  was  enforced  at  a  very  early  period,  and  was 
frequently  administered  ;(j')  nor  has  it  been  less  the  subject  of 

(0)  Vol.  1 ,  p.  453. 

(p)  See  1  Vern.  67. 

(g)  1  Term  Rep.  438  n;  and  see  1  Ves.  jun.  785;  16  Ves.  jun.  26. 

(r)  Morgan  v.  Surman,  1  Taunt.  28U. 

(s)  Gibson  v.  Kinven,  1  Vera.  6G. 

(<)  Vanderzee  v.  Aclom,  4  Ves.  jan.  771. 

(u)  Bax  Y.  Whitbread,  16  Ves.  jun.  15. 

(i)  Videch.  11,  sect.  2. 

(y")  See  Wall  V.  Thurborne,  1  Vern.  335.  414;  Cragrave  v.  Perrost,  cited,  ibid. 
855.  See  2  Cha.  Ca.  228  ;  and  see  9  Ves.  jun.  395.  In  Civil  v.  Rich,  1  Cha.  Ca. 
310,  Lord  Nottingham  referred  to  this  case,  as  expressly  confined  to  the  widowhood 
of  the  wife  ;  Astry  v.  Astry,  Prec.  Cha.  256.  As  to  Sweetman  v.  Woolaston,  cited 
1  Vern.  356,  see  5  Ves.  jun.  858. 


APPENDIX.  535 

discussion  in  modern  times. (-)  It  extended  as  well  to  real  as  to 
personal  estate ;(«)  and  tlic  only  difficulty  was  to  ascertain  what 
proportion  should  in  every  particular  case  be  deemed  illusory. 
in  Wilson  aud  Piggot,  the  proportion  given  to  one  of  four  chil- 
dren amounted  only  to  one  sixteenth  of  the  whole  fund,  and  Lord 
Alvanley  held  it  to  be  good, (6)  although  it  was  one  fourth  less 
than  an  equal  proportion.  In  Alexander  v.  Alexander, (c)  the 
proportion  given  was  only  a  sixtieth  part  of  the  fund  to  one  of 
five  children,  and  the  point  was  not  raised.  In  Kemp  v.  Kemp(^) 
Lord  Alvanley  repeated  the  desire,  which  he  had  often  expressed, 
to  get  out  of  the  rule  altogether,  and  lamented  that  equity  had 
not  followed  the  rule  of  law  ;  but  he  was  compelled,  against  his 
inclination,  to  hold  the  appointment  in  that  case  illusory.  The 
fund  amounted  to  nearly  1,1J00/.  There  were  three  objects  :  to 
one  oO/.  was  given ;  to  another  10/.  and  the  residue  to  the  other. 
The  first,  therefore,  had  only  a  tliirty-eighth  share,  and  the  second 
only  a  one  hundred  and  nineteenth  share,  of  the  entire  fund, 
when,  upon  an  equal  division,  each  would  have  been  entitled  to  a 
third.  Lord  Alvanley,  in  delivering  judgment,  said  that  he  should 
hardly  have  conceived  that  50/.  could  be  considered  a  substan- 
tial part ;  but  that  the  sum  of  10/.  was  evidently  meant  to  be  no 
gift,  the  party  merely  supposed  himself  to  be  under  the  necessity 
of  giving  something  to  each.  ..^ 

''o.  Thus  the  doctrine  stood  till  the  late  case  of  [  *583  ] 
Butcher  v.  Butcher,(c)  in  which  the  Master  of  the 
Rolls,  after  delivering  a  luminous  aud  argumentative  judgment, 
held,  that  as  no  case  had  been  found  in  which  a  sum  of  the 
amount  in  the  case  before  him  had  been  declared  illusory,  there 
was  no  ground  upon  which  he  thought  himself  justified  in  deter- 
miuing  that  tliis  was  an  invalid  appointment.  He  summed  up 
the  difliculties  attending  this  branch  of  equitable  jurisdiction  in  a 

(r)  See  Menzey  V.  Walker,  For.  72;  but  note,  there  one  child  was  totally  ex- 
cluded; Maddison  v.  Audrew,  1  Ves.  57;  Coleman  v.  Seymour,  ib.  211. 

(a)  Pocklingtou  v.  Bayne,  1  Bro.  C.  C.  450. 

(6)  2  Ves.  jun.  851.  In  Vanderzee  v,  Aclom,  4  Ves.  jun.  771  ^  the  amount  of  the 
fund  is  not  stated;  and  see  Spencer  v.  Spencer,  5  Ves.  jun.  3G2. 

(c)  2  Ves.  G40;  but  see  9  Ves.  jun.  392,  where  it  is  stated  from  the  Register's 
book  that  the  child  did  not  claim  more. 

(rf)  5  Ves.  jun.  8i9. 

(e;  9  Ves.  jun.  082.     See  1  Bligh,  479. 


636  SUGDEN   ON   POWERS. 

few  words:  "  To  sa}',  uiidci-  such  a  power,  an  illusory  share  must 
not  be  giveu,  or  that  a  substantial  share  must  be  given,  is  rather 
to  raise  a  question  than  establish  a  rule.  "What  is  an  illusory 
share,  and  what  is  a  substantial  share  ?  Is  it  to  be  judged  of 
upon  a  mere  statement  of  the  same  given,  without  reference  to 
the  amount  of  the  fortune  which  is  the  subject  of  the  power  ?  If 
so,  what  is  the  sum  tliat  must  l>c  given  to  exclude  the  interfer- 
ence of  the  Court  ?  What  is  the  limit  of  amount  at  which  it 
ceases  to  be  illusory,  and  Ijcgins  to  be  substantial  ?  If  it  is  to  be 
considered  with  reference  to  the  amount  of  the  fortune,  what  is 
the  proportion,  either  of  the  whole,  or  of  the  share,  that  would 
belong  to  each  upon  an  equal  division  ?" 

4.  In  the  case  of  Butcher  and  Butcher  there  were  nine  persons, 
and  the  fuud  amounted  to  about  17,000/.  To  some  of  the  chil- 
dren, 200/.  3  per  cents,  only  was  giveu  ;  so  that  reckoning  at  that 
period  the  stock  at  even  70  per  cent,  the  share  did  not  exceed  a 
hundred  and  twenty-second  part  of  the  fund.  In  the  next  case 
which  came  before  the  Master  of  the  Rolls,  the  fund  was  2,500/. 
South  Sea  annuities,  and  there  were  only  two  objects  of  the 
power ;  to  one  100/.  stock  was  given,  and  the  residue  to  the 
other.  The  first  therefore  had  only  a  twenty-fifth  share  ;  and  the 
Master  of  the  Rolls,  referring  to  his  former  decision,  held  the 
appointment  not  illusory.(/)  Another  case  arose  shortly  after- 
wards, in  which  the  fund  was  2,500/.  There  were  five(I)  ob- 
jects of  the  power.  To  some,  the  donee  of  the  power  gave  only 
a  share,  Avhich  amounted  to  33/.  6s.  8d.  each,  when  upon  an  equal 
division,  they  would  have  been  entitled  to  500/.  each.  The  mas- 
ter of  the  Rolls  said,  that  he  adhered  to  the  rule  he  laid  down  in 

Butcher  v.  Butclier ;  that  he  would  go  as  far  as  he  was 
[  *58-4  ]  bound  by  *authority,  and  no  farther.     Show  me,  he 

added,  a  case  in  which  a  specific  sum,  or  an  equal 
proportion  of  what  would  be  the  share  of  each  object  of  the  ap- 
pointment upon  an  equal  division,  has  been  held  to  be  illusory, 
and  I  will  in  the  same  case  make  the  same  decision.  And  after 
showing  that   Kemp  v.  Kemp  was  an  authority  only  as  to  the  10/. 

(/)  Bax  V.  Whitbieaa,  10  Ves.  jun.  81. 

(I)  Although  the  power  extended  to  the  issue  of  the  children,  yet  it  also  seems 
that  they,  the  issue,  were  considered  as  standing  iu  the  place  of  their  parent,  and 
there  were  only  five  children ;  sed.  qu. 


APPENDIX.  537 

and  (lid  not  turn  upon  the  50/.  he  determined  that  the  appoint- 
ment was  good,  as  tlie  sum  of  38/.  Gs.  8d.  was  not  the  same  spe- 
cific sum,  or  the  same  proportion  of  the  share  of  each  child,  upon 
an  equal  division,  that  had  been  in  any  former  case  held  to  be  il- 
lusory. (^)  ■ 

5.  In  the  foregoing  case,  with  reference  to  the  whole  fund,  the 
share  given  was  only  equal  to  about  a  seven ty-fifth  of  it ;  and 
in  another  case,  which  occurred  a  month  afterwards,  the  dispro- 
portion was  still  greater.  The  fund  amounted  to  about  7,100/.  and 
there  were  nine  objects  of  the  power,  seven  of  whom  had  only 
al)out  71/.  a  piece  given  to  them.  The  point  was  given  up  in 
argument ;  and  the  Master  of  the  Rolls  tli ought  that  there  was 
nothing  in  an  objection  taken  that  there  might  be  more  children ; 
there  was  so  little  probability,  under  the  circumstances,  that  the 
shares  would  ever  be  reduced  below  the  standard  under  wliich  he 
had  said  he  shoukl  consider  himself  bound  by  the  authorities. (//,) 

6.  The  result  of  tlie  authorities,  then,  was  rather  a  negative 
than  an  affirmative  rule.  Lord  Alvanley  determined,  that  where 
a  party  is,  in  default  of  appointment,  to  take  a  third  share,  a  gift 
of  a  hundred  and  ninetieth  share  to  him  is  illusory  ;  and  here  the 
Master  of  the  Rolls  drew  the  line  ;  so  that  any  share  which, 
squared  by  this  rule,  would  exceed  that  amount,  was  not  deemed 
llusory.  But  upon  an  appeal  to  the  Lord  Cirancollor,  in  Ba^v. 
Whitbread,  for  the  express  purpose  of  restoring  the  old  rule,  his 
Lordship  thouglit  that  the  princijde  stated  in  the  late  cases  in  effect 
destroyed  all  the  authorities.  The  sum  of  50/.  being  given,  he  said, 
in  one  family,  and  by  one  will,  it  is  diflicult  to  conceive  that  the 
identity- of  the  sum,  or  the  proportion,  can  afford  the  ground  of  de- 
termination in  another  family  and  upon  another  will.  The  motives 
also  must  be  furnished  by  the  same  circumstances,  whether  good 
conduct  or  misconduct :  a  provision  by  a  parent  or  a  third  person  : 
circumstances,  if  tlie  Court  is  at  liberty  to  regard  them,  of  utility. 
The  result  of  the  authorities,  he  added,  was,  that  from 

the  time  of  Lord  Nottingham,  the  Court  has  *taken  upon  [  *585  ] 
itself  the  duty  of  exercising  a  discretion  in  these  cases  ; 
and  his  Lordship  seems  to  have  considered  himself  still  l)ound  by 
those  decisions.     Upon  a  later  appeal  to  Lord  Eldon,  in  Butcher 

(g-)  Mocatta  V.  Lousada,  12  Ves.  jun.  123. 
(/i)   Dyke  V.  Sylvesttr,  12  Ves.  juu.  126. 


638  SUGDEN   ON    POWERS. 

V.  Butcher,  he  expressed  ihe  same  opinion. (/)  The  law,  therefore, 
on  this  head,  appears  to  stand  as  it  did  before  the  case  of  Butcher 
and  Butcher  was  decided  by  the  Master  of  the  Rolls  ;  and  yet 
although  Lord  Eldon  decided,  that  the  Court  was  bound  to  inquire 
whether  the  share  was  substantial  or  not,  his  Lordship  showed  a 
strong  disposition  to  narrow  the  doctrine.  In  both  the  appeals,  the 
decrees  of  the  Master  of  the  Rolls  were  confirmed,  on  tlie  ground 
that  the  shares  were  not  illusory.  In  Butcher  and  Butcher,  Eliza- 
beth Butcher, had  a  power  to  appoint  the  fund  amongst  her  children 
by  her  present  or  any  future  husband,  by  deed  or  will,  from  time  to 
time.  The  power  was  quite  in  the  common  form  ;  and  therefore, 
perhaps,  much  weight  could  not  be  given  to  the  circumstance,  that 
at  the  time  of  making  any  particular  appointments  she  could  not 
know  what  the  number  of  olijects  would  ultimately  be  ;  and,  in- 
deed, as  appointments  are  not  often  made  till  the  children  re- 
quire their  portions,  when  the  probability  of  many  other  children 
must  have  ceased,  this  is  a  difficulty  which  is  not  likely  to  arise. 
In  default  of  appointment  the  fund  was  given  in  the  usual  way  to 
sons  at  twenty-one,  and  to  daughters  at  twenty-one  or  marriage  ; 
but  it  was  provided,  that  if  any  son  of  her  present  marriage  should 
attain  twenty-one,  or  any  daughter  twenty-one,  or  marry,  no 
child  by  any  future  husband  should,  by  marriage  or  otherwise,  be 
entitled  to  more  than  a  moiety  of  the  property,  which  provision, 
it  migiit  be  contended,  could  not  afiect  the  right  of  each  class  of 
children,  as  between  themselves,  to  a  substantial  share.  She  made 
the  unequal  appointment  which  has  been  mentioned ;  and  Lord 
Eldon  held,  that  attending  to  all  the  circumstances,  and  the  nature 
of  the  trust  collected  from  the  deed,  he  was  not  authorized  to  say 
the  share  was  not  substantial.  He  relied  upon  the  circumstances, 
that  tlie  power  was  from  time  to  time,  and  the  number  of  objects 
was  incapable  of  being  ascertained  until  she  reached  an  age  at 
which  she  could  not  have  more  ;  and  if  there  had  been  one  child 
by  a  subsequent  marriage,  after  all  her  particular  appointments, 
that  child  might  have  taken  a  moiety  of  what  constituted  the 
whole  fund  before  any  appointment,  tliough  that  should  leave  to 
perhaps  twenty  children  of  the  former  marriage  only  their 
respective   shares   of   what   remained  unappointed.      It  is    evi- 

(i)  1  Ves.  k  Bea.  79. 


APPENDIX.  539 

dent,  he  observed,  how  immensely  large  a  discretion  [  *586  ] 
was  given,  and  to  what  the  fund  might,  by  repeated 
executions  of  the  power,  be  reduced,  and   this  went  far  to  show 
that  her  discretion  must,  as  far  as  it  can  in  any  case,  be  unfet- 
tered. 

7.  As  we  shall  hereafter  see,  what  is  not  appointed,  or  is  ill 
appointed,  goes  as  in  default  of  appointment,  and  where  the  fund 
was  given  by  the  instrument  creating  the  power  to  the  objects 
in  default  of  appointment,  the  dying  without  any  appointment 
as  to  a  part  was  considered  equal  to  an  actual  appointment ;  and 
therefore  a  sufficient  share  being  permitted  to  descend  was  deemed 
tantamount  to  an  appointment,  so  as  to  prevent  any  question  of 
illusion,  (/t;) 

8.  And  if  an  appointment  was  made  of  part  of  the  fund,  ex- 
cluding some  of  the  ol)jccts,  but  leaving  a  share  not  illusory  to 
descend,  and  afterwards  an  apjjointment  was  made  of  the  residue, 
wholly  excluding  or  giving  an  illusory  share  to  some,  the  last  ap- 
pointment only  was  held  to  be  void,  so  that  the  residue  might 
descend  and  upliold  the  former  appointment.  If  a  contrary  rule 
had  Ijcen  established,  leaving  a  share  not  illusory  to  descend, 
would  have  been  good  at  first,  but  have  become  bad  afterwards.  (Z) 

9.  And  although  an  a])pointment,  abstractedly  taken,  wer§^llu- 
-ory,  yet  it  might  be  justilied  by  circumstances,  and  equity  would 
not  relieve  against  it.  Formerly  it  was  considered,  that  where 
Ijut  a  trifle  was  given,  yet  if  the-child  by  misbehavior  deserved  it, 
the  Court  would  not  vary  the  appointment  ;(wi)  but  ultimately  it 
was  held  that  the  conduct  of  the  objects  of  the  power  could  not 
be  taken  into  consideration. (//) 

10.  In  Boyle  v.  the  Bishop  of  Peterborough,  Lord  Thurlow 
laid  it  down,  that  where  gross  inequality  is  accounted  for,  and  by 
the  situation  of  the  children,  is  rendered  humane,  and  wise  and 
discreet,  the  Court  will  not  call  it  illusory. (o)  Therefore,  if  a 
child  become  a  bankrupt,  and  has  not  obtained  his  certificate, 
that  may  be  a  sufficient  reason  to  give  him  a  small  share. (p) 
And  where  a  father,  having  advanced  a  cliild  upon  marriage, 

(A)  Wilson  V.  Piggott,  2  Vea.  jun.  351. 

(/)  Ibid.     See  1  Ves.  &  Bea.  101. 

(»7i)  Maddison  v.  Andrew,  1  Ves.  57. 

(n)  Kemp  v.  Kemp,  5  Ves.  jun.  855.     See  1  Ves.  &  Bea.  97. 

(0)  1  Ves.  jun.  '2'J9;  3  Bro.  C.  C.  243. 

(p)  Bai  V.  WliitbreaJ,  IG  Vea.  jun.  15. 


540 


SUGDEN   ON   POWERS. 


recited  that  as  a  reason  for  giving  her  a  small  share,  it 
[  *587  ]  was  held  not  to  be  illusory. (^)     For  the  *ground  of 

interference  in  these  cases  is  fraud,  and  in  such  case  the 
child  would  be  guilty  of  a  fraud  in  attempting  to  set  aside  the 
appoinlment,  the  parent,  jjcrhajis,  having  advanced  more  on  that 
account  ;  the  answer  would  be,  ho  had  given  tliat  child  a  substan- 
tive share,  who  therefore  could  not  complain  of  the  difference. (r) 
Lord  Alvanley  expressed  his  opinion,  that,  perhaps,  if  a  sufQclcnt 
reason  could  be  proved  between  parent  and  child,  the  Court  would 
apply  the  rule  ;  but  it  must  be  proof,  he  said,  that  leaves  no  doubt 
whatsoever.  And  in  speaking  this,  he  adverted  to  extrinsic 
proof,  where  no  statement  appears  upon  the  face  of  the  appoint- 
ment. (5)  But  it  seems  that  in  these  cases  the  provision  must 
have  moved  from  the  person  entrusted  with  the  power  of  appoint- 
ment,(/)  although  in  one  case  Lord  Alvanley  expressed  an  ojjin- 
ion,  that  a  small  share  might  be  given  where  there  is  an  actual 
provision  made  for  some,  even  where  it  does  not  move  from  (he 
person  execuling  the  poiner.  The  power  of  distribution,  he  said, 
was  given  in  order  that  there  might  be  an  inequality,  if  necessary. 
It  was  therefore,  he  added,  nothing  but  a  trust  in  the  party  to 
discriminate  how  much  each  ought  to  have,  under  every  circum- 
stance that  ought  fairly  to  enter  into  his  consideration,  and  with 
a  view  of  the  object  of  the  power,  that  each  of  them  should  receive 
a  provision.  If  that  was  satisfied  aliunde,  it  had  its  object. (w) 
It  is  however  clear  that  the  provision  must  not  have  moved  from 
the  person  creating  the  power. (.t)  And  in  a  case,  where,  under 
a  power  to  appoint  to  younger  children,  the  parent,  in  cfi'ect, 
excluded  the  second  son,  because  the  eldest  was  an  idiot,  and  he 
considered  that  the  second  child  would  obtain  a  grant  of  the  sur- 
plus rents,  which  he  actually  did,  yet  Lord  Redesdale  licld  that 
the   appointment   was   illusory.(7/)      His   Lordship   said,  "if  a 


(9)  Bristow  V.  Warde,  2  Ves.  jun.  3G6;  and  see  Smith  v.  Lord  Camelford,  ib.  COS; 
Vandcrzee  v.  Aclom,  4  Ves.  jun.  771;  Long  v.  Long,  5  Ves.  jun.  445;  Spencer  v. 
Spencer,  5  Ves.  jun.  362;  Bax  v.  Whitbread,  16  Ves.  jun.  15. 

(r)  See  5  Ves.  jun.  368. 

(s)  Spencer  v.  Spencer,  ubi  sup.     See  1  Ves.  &  Bea.  97. 

(/)  Mocatta  v.  Lousada,  12  Ves.  jun.  123. 

(u)  Vanderzee  v.  Acloni,  4  Ves.  jun.  785,  sed  qu.  See  16  Ves.  jun.  25;  Ljsaglit  v. 
Royse,  2  Scho.  &  Lef.  151 ;  and  1  Ves.  &  Bea.  97. 

(a;)  Kemp  v.  Kemp,  o  Ves.  jun.  861 ;  Lasight  v.  Royse,  ubi  sup. 

(i/)  Laysight  v.  Royse,  2  Scho.  &  Lef.  151. 


APPENDIX.  641 

younfyer  son  is  provided  for  amply  by  a  fortune  aliunde,  by 
obtaining  a  lucrative  situation,  or  the  like,  it  may  be  a  ground  for 
an  appointment  so  unequal  that  it  might  be  otherwise  deemed 
illusory ;  but  that  cannot  be  considered  as  a  provision  which  is  a 
mere  expectancy,  depending  on  the  will  and  pleasure 
of  another ;  *and  an.  appointment  cannot  be  deemed  [  *588  ] 
good  or  bad  according  to  the  manner  in  which  that 
pleasure  may  be  afterwards  exercised.  If  a  father  supposed  that 
provision  would  be  made  for  one  of  his  sons  by  his  brother,  which 
expectation  might  be  iinally  disappointed,  a  very  unequal  appoint- 
ment made  under  that  expectation,  however  founded,  and  however 
reasonable  at  the  time,  could  not  be  supported.  In  the  present 
case,  if  the  appointment  had  been  made  in  such  a  form  as  would 
have  given  the  son  a  fair  share,  in  case  he  had  not  derived  ))encfit 
from  the  peculiar  circumstances  of  his  elder  V)rother,  it  might 
perhaps  have  been  sustained  ;  but  this  is  an  absolute  appointment 
in  all  events,  and  the  question  is,  whether  such  an  absolute 
appointment,  not  subject  to  any  contingency,  can.  be  made  good 
by  subsequent  events,  if  it  would  not  be  good  in  all  events.  He 
thought  the  appointment  must  have  been  good  on  the  day  it  was 
made,  or  not  good  at  all.  In  cases  of  this  kind,  where  the 
appointment  is  grossly  unequal,  and  there  is  no  just  foundation 
for  the  inequality,  but  it  is  the  result  of  mere  caprice  or  mistake, 
the  appointment  cannot  stand ;  it  is  not  a  just  exercise  of  the 
power  given.  Here  there  was  no  caprice,  no  intentional  injustice. 
l)ut  there  was  mistake,  and  the  gross  inequality  was  made  under 
the  influence  of  that  mistake. 

It.  It  may  here  again  be  observed,  that  if  the  fund  consist 
partly  of  real  and  partly  of  personal  estate,  it  is  not  necessary  to 
give  a  part  of  each  to  every  object ;  but  if  there  are  two,  for 
instance,  all  the  realty  may  be  given  to  one,  and  all  the  personalty 
to  the  other,  (c) 

12.  If  the  objects  have  agreed  to  abide  by  the  intention  and 
will  of  the  donee  of  the  power,  they  cannot  set  aside  even  an 
illusory  a])pointment.(a)(I) 

(2)  ^Morgan  v.  Surman,  1  Taunt.  289. 
(a)  Pawlet  v.  Pawlet,  1  Wils.  224. 

(I)  This  case,  which  is  very  long,  did  not  decide  any  thing.  The  E.irl  made  provi- 
sions  by  his  Viill  for  all  his  children,  and  the  decree  is  prefaced  by  this  declaration; 

Vol.  II.  46 


542  SUGDEN   ON   POWERS. 

[  "SSO  ]       *13.  If  the  ap])oiiitmcnt  is  illusory,  but  there  is  by 
implication  a  gift  to  or  a  trust  for  the  objects,  the  fund 
will  be  given  to  them  equally. (6) 


No.  20. 

Daniel  v.  Goodwin.{c') 

Exchequer,  Trinity  Term,  8  <fe  9  Geo.  II. 

The  husband,  antecedent  to  the  marriage,  covenanted  with  his 
intended  wife,  that  she  should  have  a  power  to  dispose  by  will  of 
her  estate  and  effects.  Subsequent  to  the  marriage,  the  wife  was 
made  executrix  to  the  last  will  and  testament  of  A.  The  wife 
afterwards  made  her  will  of  the  goods  and  effects  she  had  as 
executrix  ;  and  constituted  B.  executor  thereof.  Upon  a  declara- 
tion in  prohibition,  and  demurrer  to  the  plea  put  in  to  it  the 
question  was,  whether  the  Spiritual  Court  had  a  power  to  grant  a 
probate  thereof,  or  whether  it  should  not  operate  as  an  appoint- 
ment to  be  carried  into  execution  by  a  Court  of  Equity !  And  as 
to  this  point,  the  Court  took  this  difference,  where  the  will  sub- 
sisted upon  the  agreement  of  the  parties  antecedent  to  the  mar- 
riage, there  the  will  is  in  the  nature  of  an  appointment,  which  is 
to  be  carried  into  execution  by  a  Court  of  Equity ;  but  where  the 
wife  is  made  executrix  to  another  person,  there  the  Spiritual 
Court  may  grant  a  probate  of  her  will,  for  she  may  continue  the 
executorship  by  constituting  a  person  executor  to  the  first  testa- 
tor ;  and  she  may  by  law  make  a  disposition  of  choses  in  action, 
which  she  was  possessed  of  as  executrix,  because  in  auter  droit; 

that  the  plaintiff  having  by  liis  bill,  anil  now  in  court,  expressly  snbniitted  to  be 
bound  by  the  intention  of  his  father,  the  late  Earl,  in  his  deed  of  appointment  and 
■will,  according  to  the  true  construction  theroof,  and  all  the  defendants,  the  other 
children  of  the  late  Earl,  having,  by  their  answers,  or  now  by  their  counsel  at  the 
bar,  submitted  to  take,  according  to  the  true  intention  of  the  said  Earl,  and  all  the 
said  parties  disclaiming  to  take  advantage  of  any  defect  in  point  of  law  or  equity  m 
the  execution  of  the  said  Earl's  power  by  the  deed  of  appointment,  his  Lordship  de- 
clared, &c.     Poulett  V.  Earl  Poulctt,  Reg.  Lib.  B.  fol.  582. 

(6)  Gibson  v.  Kinven,  1  Vern.  GG;  Kemp  v.  Kemp,  5  Vcs.  jun.  849. 

(c)  Vide  supra,  vol.  2,  p.  18. 


APPENDIX.  543 

and  the  Spiritual  Court  may  prove  such  will ;  1  Mod.  201 ;  Salk.. 
308 ;  Vent.  4 ;  6  Mod.  241 ;  1  Roll.  Abr.  608 ;  Moor,  339 ;  2 
Mod.  170. 


No.  21. 

Mansell  v.  Price. (d^) 

At  the  Rolls,  Michaelmas  Term,  9  Geo.  II. 

Catherine  Mansell,  before  her  marriage  with  the  defendant 
Price,  assigned  all  her  personal  estate  due  to  her  by  bond,  judg- 
ment, &c.  except  1,000/.  which  the  defendant  was  to  have  imme- 
diately to  his  own  use,  iu  trust  for  the  defendant  Price, 
and  Catherine  his  *intended  wife,  for  their  lives,  and  [  *590  ] 
the  life  of  the  survivor  of  them,  and  afterwards  that  the 
principal  money  should  be  laid  out  in  land  to  the  use  of  the  heirs 
of  the  body  of  Catherine  by  the  defendant ;  and  for  want  of  such 
issue,  to  the  use  of  the  survivor  for  ever,  provided  that  Catherine 
should  have  power,  at  any  time  during  the  coverture,  by  will  or 
deed,  executed  in  the  presence  of  three  or  more  credible  wit- 
nesses, to  give  or  dispose  of  any  sum  out  of  the  principal  money, 
not  exceeding  1,500/.,  to  such  persons  and  uses  as  he  should  limit 
and  appoint,  whicli  should  be  payable  immediately  after  her  de" 
cease,  in  case  she  died  without  issue  by  the  defendant  Price. 
Catherine  Price,  some  time  during  the  marriage,  duly  executed 
the  power  by  deed-poll  iu  the  presence  of  three  witnesses,  and 
thereby,  for  the  natural  affection  she  bore  to  her  niece  Catherine 
Dawkins,  and  lier  eldest  daughter  Catherine,  and  for  the  next 
daughter  her  said  niece  should  have,  did  give,  grant,  and  dispose 
of  the  said  sum  of  1,500/.  to  Sir  Edward  Mansell,  his  executors 
and  administrators,  immediately  after  her  decease,  if  she  died 
without  issue,  in  trust,  that  he  should  pay  to  Catherine,  the 
eldest  daughter  of  her  niece,  1,000/.  when  she  should  attain  the 
age  of  twenty-one,  or  marry,  in  case  the  marriage  should  be  by 
consent  of  her  mother  ;  but  if  she  should  die  before  twenty-one, 
or  marry  without  consent,  that  then  it  should  be  to  such  uses  as 

{d)  Viaesupra,  vol.  2,  p.  20. 


544  SUGDEN    ON   POWERS. 

Catlieiinc  tho  niece,  whether  sole  or  covert,  by  deed  or  writing, 
should  direct  and  appoint,  except  to  her  husband,  if  she  should 
have  any,  with  or  without  power  of  revocation  ;  and  the  other 
oOO/.  she  directed  to  be  paid  to  the  next  daughter  of  her  niece 
when  she  should  be  twenty-one,  or  marry,  exactly  under  the  same 
terms  as  before.  Catherine,  the  niece,  had  afterwards  issue  an- 
other daughter,  and  then  Catherine  Price  died  without  issue. 
This  bill  was  filed  by  the  guardian  of  the  infant  dauglitcrs,  to 
have  the  money  paid,  and  to  be  put  out  for  tlicni  to  have  the  in- 
terest thereof  immediately.  For  the  defendant  Price  it  was  in- 
sisted, that  he  was  entitled  to  tho  interest  of  the  1,500/.  until  the 
same  should  respectively  become  payable,  either  as  a  resulting 
trust  (he  being  administrator  to  his  wife,)  .or  part  of  his  right 
under  the  articles  taken  from  him  by  the  execution  of  the  power. 

The  first  question  was,  whether  parol  evidence  could  be  ad- 
mitted to  explain  the  intention  of  Catherine  Price,  what  should 
become  of  the  interest  till  the  times  of  payment ;  for  if  that  could 
be  admitted,  there  was  suflicient  to  prove  the  husband  should  not 
have  it,  but  that  it  should  go  to  the  same  persons  to 
[  *o91  ]  whom  tho  money  was  given  by  *the  deed  of  appoint- 
ment, and  the  Master  of  the  Rolls  was  of  opinion  such 
parol  evidence  could  not  be  read. 

The  second  question  was,  whether  there  could  be  a  resulting 
trust  to  the  husband  of  the  interest  of  1,500/.  till  such  time  as  it 
should  become  respectively  payable  according  to  the  limitations 
in  the  deed. 

As  to  this,  he  said  this  was  not  a  case  of  a  resulting  trust,  or  a 
trust  originally  created,  but  it  arose  on  a  power  given  and  exe- 
cuted out  of  an  original  trust,  )iy  which  it  must  be  considered  as 
if  it  had  never  been  comprised  in  that  trust,  because  it  was  abso- 
lutely taken  out  of  it  by  the  execution  of  the  power.  This  case 
of  money  differed  from  land  where  there  was  a  com})lete  disposi- 
tion, for  here  was  an  entire  and  full  disposition  of  the  whole 
money ;  and  it  diflered  also  in  this  respect,  for  land  by  law  was 
always  presumed  to  make  a  profit,  and  the  form  of  all  writs  in  real 
actions  supposes  it ;  but  in  the  case  of  money  it  is  otherwise,  for 
it  is  not  supposed  to  have  any  profit  at  all,  and  the  time  was 
when  it  was  thought  illegal  to  make  a  profit  of  money,  and  the 
canon  law  would  not  suiler  an  usurer  to  make  a  will.     Then  here 


APPENDIX.  645 

is  a  disposition  of  this  money  to  Sir  Edward  Mansell,  a  trustee, 
by  virtue  of  the  power,  who  is  not  bound  to  put  out  his  money, 
though  he  may  be  compelled,  according  to  the  judgment  and  di- 
rection of  this  Court ;  but  of  his  own  head  he  has  no  authority  to 
put  it  out ;  and  further,  if  a  trustee,  not  having  power,  did  put 
out  money,  it  was  at  his  own  risk  ;  and  in  that  case,  since  he  had 
practised,  it  had  been  thought  that  such  trustee  putting  out 
money  without  the  direction  of  the  trust,  or  of  the  Court,  should 
liave  the  profit  for  the  risk  of  putting  it  out  ;  but  now,  if  a  trus- 
tee puts  out  money  when  not  warranted  by  the  trust,  he  must  an- 
swer for  ill  security,  and  yet  shall  not  have  the  benefit,  because  of 
late  it  had  been  easy  and  safe  to  lay  out  such  money  in  govern- 
ment securities,  which  this  Court  thinks  proper  securities,  having 
an  act  of  parliament  on  its  side.  Then  the  whole  capital  money 
being  in  the  hands  of  the  trustee  entirely  for  the  benefit  of  cestui 
que  trust,  would  draw  the  interest  with  it;  so  he  decreed  there 
would  be  no  resulting  trust  on  this  power  of  appointment. 


*No.  22.  [  *592  ] 

Williams  and  Others  v.  Carter  and  Others. {e') 

By  an  indenture,  bearing  date  the  9th  of  August  1802,  and 
made  between  the  Reverend  Thomas  Carter  of  the  first  part, 
Mary  his  wife  (by  her  then  name  and  description  of  Mary  Proctor, 
spinster,)  of  the  second  part,  and  the  Reverend  Daniel  Williams, 
clerk,  Robert  Piiilip  Goodenough,  clerk,  Joseph  Goodall,  D.D. 
and  William  Carter,  clerk,  of  the  third  part  (being  the  settlement 
made  previously  to  the  marriage  of  the  said  Thomas  Carter  and 
Mary  his  wife,)  the  expectant  share  of  the  said  Mary  Carter  of 
and  in  the  sum  of  5,000^.  was  assigned  to  the  said  trustees,  upon 
trust  to  invest  the  same  in  real  or  government  securities,  or  in  the 
public  funds,  and  to  stand  possessed  of  the  same  upon  the  trusts 
therein  mentioned,  for  the  benefit  of  the  said  Thomas  Carter  and 
Mary  his  wife,  and  their  issue.  And  it  vras  provided,  "  that  it 
shall  and  may  be  lawful  for  the  said  Daniel  Williams,  Robert  P. 

(e)  Vide  supra,  vol.  2,  p.  459. 

46* 


540  SUGDEN    ON    POWERS. 

(Joodonough,  Joseph  Goodall,  and  William  Carter,  and  the  sur- 
vivors aud  survivor  ol"  them,  his  exeeutors,  administrators  and 
assigns,  in  the  mean  time,  after  such  investments  shall  be  made  as 
albrcsaid,  and  until  tlie  trusts  hereinbefore  declared  concferning 
the  said  stocks,  funds  and  securities,  shall  bo  fully  performed,  with 
the  consent  in  writing  of  the  said  Thomas  Carter  and  Mary  his 
wife,  or  the  survivor  of  them,  to  change  such  stocks,  funds  and 
securities  for  others  of  the  same  or  the  like  nature,  as  often  as  it 
^hall  be  thought  expedient,  subject  nevertheless  to  the  trusts  here- 
inbefore declared."  And  by  the  said  Indenture  the  said  Thomas 
Carter  covenanted  with  the  said  trustees,  "  that  if  at  any  time  or 
times  thereafter  during  the  said  intended  coverture,  any  heredita- 
ments or  real  estate  should  descend  unto,  devolve  upon,  or  be- 
come vested  in  possession,  reversion,  or  remainder,  in  her  the 
said  Mary  Proctor,  or  in  the  said  Thomas  Carter,  in  her  right, 
then  and  in  such  case,  and  immediately  after  the  same  should 
happen,  all  and  singular  such  hereditaments  and  real  estate  should 
be  conveyed,  settled,  aud  assured  upon  and  for  the  same  trusts 
and  purposes,  and  subject  to  the  powers,  provisoes  and  declara- 
tions as  thereinbefore  expressed  and  declared,  concerning  the  said 
stocks,  funds  and  securities,  or  as  near  thereto  as  the  nature  of 

real  estate  would  admit  of.'' 
[  *o93  ]      *By  indenture  of  Lease  and  Release,  bearing  date 

respectively  the  18th  and  19th  March  1806,  and  a  com- 
mon recovery  suffered,  in  pursuance  of  the  said  Indenture  of  Re- 
lease, certain  hereditaments  and  real  estate  were  conveyed  and 
limited  to  such  uses  as  Henry  Proctor,  the  father  of  the  said  Mary 
Carter,  should  appoint,  and  in  default  of  appointment,  to  the  use 
of  all  and  every  the  daughter  and  daughters  of  the  said  Henry 
Proctor j  as  tenants  in  common,  and  the  several  and  respective 
heirs  and  assigns  of  such  daughter  and  daughters  forever. 

The  said  Henry  Proctor  died  in  January  1815,  without  having 
made  any  appointment  of  the  said  estates,  leaving  the  said  Mary 
Carter,  Jane  Proctor,  and  Emma  Anne  Proctor,  his  only  daughters. 
The  said  Tliomas  Carter,  and  Mary  his  wife,  Jane  Proctor,  and 
Emma  Anne  Proctor,  contracted  to  sell  the  said  estates  to  which 
they  became  entitled  under  the  Indentures  of  the  18th  and  19th 
March  1806  ;  and  in  February  1818  a  bill  was  filed  by  the  trus- 
tees of  the  marriage  settlement,  praying  (among  other  things,)  that 


APPENDIX.  547 

it  might  be  declared  that  the  plaintiffs  were  entitled  to  have  the 
covenant  contained  in  the  said  Indenture  of  settlement  of  9th 
August  1802  specifically  performed  ;  and  that  the  third  part  or 
share  of  the  hereditaments  and  premises,  to  which  the  said  Tho- 
mas Carter  and  Mary  his  wife,  in  her  right,  had  succeeded,  ought 
to  stand  settled  to  uses,  or  upon  trusts,  and  subject  to  powers 
similar  to  or  corresponding  with  the  trusts  and  powers  declared 
and  expressed  in  the  said  Indenture  of  settlement,  as  nearly  as  the 
nature  of  the  said  third  part  or  share  would  admit ;  and  that  it 
might  be  further  declared  that  such  powers  ought  to  include 
powers  of  sale,  and  of  partition  and  exchange  over  the  said  third 
part  or  share,  with  all  necessary  directions  for  giving  effect 
thereto. 

By  a  decree  made  on  the  8th  May  1818  it  was  declared  that 
the  share  and  interest  of  the  defendant,  Mai-y  Carter,  in  the  pre- 
mises in  question,  were  subject  to  the  covenant  contained  in  the 
settlement  of  9th  August  1802  ;  and  that  the  settlement  to  be 
made  in  pursuance  of  that  covenant  ought  to  contain  powers  of 
sale  and  exchange  by  the  trustees,  with  such  consent  as  is  requir- 
ed for  changing  the  securities,  wherein  the  share  in  the  5,000/. 
mentioned  in  the  settlement  is  invested. 


^No.  23.  [  *594  ] 

Fox  V.  Greg-g-.if) 

Duchy  Court  of  Lancaster,  before  the  Chancellor  of  the  Duchy 
of  the  county  Palatine  of  Lancaster,  assisted  by  Mr.  Justice  Le 
Blanc  and  Mr.  Justice  Heath. 

The  facts  were  stated  by  Mr.  Justice  Le  Blanc  in  giving  judg- 
ment as  follows : 

This  cause  comes  before  the  Court  by  appeal  from  the  decree 
pronounced  by  the  Vice-Chancellor  of  the  county  Palatine  of  Lan- 
caster. The  cause  was  originally  instituted  by  Esther  Marsland. 
The  cause  was  revived  by  her  executor,  Adam  Fox,  and  the  de- 
cree of  the  Vice-Chancellor,  by  which  it  was  brought  to  this 

(/  )  Vide  supra,  \ol.  2,  p.  279. 


548 


SUGDEN    ON    POWERS. 


Court,  declares  the  appoiutmcut  by  the  testatrix,  Mary  Hatniltou, 
of  the  moiety  of  the  testator's  estate  to  be  illusory  and  void  ;  and 
that  tlie  moiety  is  to  be  applied  iu  such  manner  as  the  will  of  the 
testator  directs  ;  and  it  orders  the  moneys  to  be  divided  in  eigh- 
teen proportions. 

In  order  the  better  to  understand  the  cause,  I  will  shortly  state 
the  terms  of  the  testator's  will  creating  the  power ;  the  appi)oint- 
ment  under  the  will,  and  some  view  of  the  facts  produced  from  the 
prodigious  mass  of  papers  now  before  me.  The  facts  are  these  : — 
Robert  Ilamilton,  merchant,  of  Manchester,  by  will,  duly  made 
on  the  11th  July  1777,  devised  his  real  estate  to  be  convert- 
ed into  money,  and  added  to  his  personal  estate,  and  direct- 
ed the  residue  to  be  divided  in  two  parts.  He  gave  cne  moiety 
to  Mary  Hamilton  his  wife,  for  her  own  use  and  benefit,  and  the 
other  moiety  was  to  be  put  out  at  interest,  and  that  interest  to 
be  paid  her  during  her  life.  After  her  death,  he  directs,  "  the 
same  shall  be  paid  to  and  divided  among  my  cousins,  viz.  : — The 
children  of  my  late  uncles,  Robert  Hamilton  and  John  Hamilton, 
and  of  my  late  aunt  Mary  Hobson,  and  my  cousin  Thomas  Da- 
venport, the  children  of  my  late  uncle  Edward  Holt,  and  the 
grandchildren  of  my  late  uncle  Robert  Holt,  deceased,  in  such 
shares  and  proportions,  manner  and  form,  as  my  said  wife  shall, 
by  any  her  deed  or  deeds,  writings,  or  by  her  last  will  and  testa- 
ment in  writing,  notwithstanding  her  coverture,  to  be  by  her  duly 
executed  in  the  presence  of  two  or  more  witnesses,  direct,  order, 
and  appoint." — Then  come  these  words, — "  And  in  de- 
[  *595  ]  fault  ""of  such  direction,  order,  or  appointment,  I  give 
and  bequeath  the  same  unto  my  said  cousins,  to  be 
equally  divided  amongst  them,  share  and  share  alike :  and  it  is  my 
will  and  mind  that  the  child  or  children  of  such  of  my  cousins  as 
are  now,  or  at  the  time  of  my  decease,  may  be  dead,  or  of  such 
of  them  who  shall  die  during  the  life  of  my  said  wife,  shall  stand 
in  the  place  of  their  deceased  parent  or  parents,  and  be  entitled 
to  sucli  interest  and  benefit  as  the  parent  or  parents  of  such  child 
or  children  would  have  been  entitled  to  by  this  my  will,  in  case 
he  or  she  had  survived  my  said  wife.  And  I  nominate  and  ap- 
point my  said  wife,  and  William  Crane,  executrix  and  executor  of 
this  my  will." — The  facts  which  occurred  after  the  will  was 
made  are  these  : — The  testator,  Robert  Hamilton  died  the  latter 


APPENDIX.  549 

eud  of  1780,  or  the  beginniug  of  1781,  without  having  revoked, 
or  in  any  manner  altered  his  will. 

After  his  death,  Robert  Hamilton,  who  was  his  heir  at  law, 
and  eldest  son  of  Robert  Hamilton,  the  deceased  uncle  of  the  tes- 
tator, claimed  to  be  entitled  to  and  took  possession  of  a  copyhold 
estate  situated  at  Sowerby,  the  property  of  the  testator,  because 
it  was  undisposed  of,  and  had  not  been  surrendered  to  the  use  it 
was  to  be  applied  to  under  the  will.  This,  it  must  be  observed, 
does  not  make  any  difierence  in  the  will,  because  if  it  was  the 
intention  of  the  testator  to  have  this  copyhold  surrendered,  it 
was  to  form  a  part  of  his  general  fund,  therefore  that  circum- 
stance may  be  laid  out  of  the  case. 

On  the  5th  of  May  1792,  in  the  life-time  of  the  testator's 
cousin  Robert  Hamilton,  the  testator's  widow  and  executrix, 
Mary  Hamilton,  made  a  will  properly  attested : — In  that  will, 
after  reciting  the  power  given  her  by  lier  deceased  husband  to 
divide  and  appoint  one  moiety  of  his  personal  estate  amongst  his 
cousins,  in  such  sliares  and  proportions  as  she  should  by  deed 
or  will,  direct,  limit,  or  appoint,  she  further  adds,  that  Robert 
Hamilton,  one  of  such  cousins,  being  the  eldest  son  of  her  late 
husband's  uncle  Robert  Hamilton,  had  since  his  death  claimed, 
and  was  then  in  possession  of,  a  copyhold  estate  of  which  her 
said  husband  was  seised  in  fee,  and  which  he  intended  to  deTTse 
])y  his  will,  but  which  did  not  pass  there1)y  for  want  of  having 
been  surrendered  to  the  use  thereof;  and  that  she  therefore  con- 
sidered the  said  Robert  Hamilton,  the  son,  and  his  issue,  as  suffi- 
ciently provided  for  by  such  copyhold  estate  ;  and  she,  the  said 
Mary  Hamilton,  declared  her  will,  and  directed  and  appointed 
the  said  moiety  of  the  residue  of  her  deceased  hus- 
band's real  and  personal  estate  to  be  paid  *and  divided  [  *o96  ] 
as  follows  ;  that  is  to  say,  tlie  sum  of  one  shilling,  (part 
thereof)  be  paid  unto  Robert  Hamilton,  the  eldest  son  of  her  late 
husband's  uncle  Robert  Hamilton,  if  he  should  be  living,  and  if 
lie  should  be  dead,  then  to  his  issue,  as  and  for  and  in  full  of  his 
or  his  issue's  share  of  the  said  moiety,  and  that  the  remainder  of 
the  moiety  should  be  divided  into  so  many  and  such  shares  and 
portions  as  the  same  would  have  been  divided  into  under  her  said 
husband's  will,  in  case  the  said  Robert  Hamilton,  the  son,  had 
died  without  issue. 


550  SUGDEN   ON   POWERS. 

In  1794,  after  tlic  makhijj;  of  this  will,  Robert  Hamilton,  the 
eldest  sou  of  the  heir  at  law  of  the  uncle  of  the  testator,  died, 
leaving  issue  four  or  more  children,  namely,  Robert  Hamilton,  of 
Branihall,  in  the  county  of  Chester,  former,  his  eldest  son  and 
heir  at  law ;  Ann  Clark,  of  Bullock  Smithy,  in  the  said  county, 
widow ;  Margaret  Downing,  wife  of  George  Downing,  of  Marple, 
in  the  said  county,  and  others. 

In  1806,  Mary,  the  widow  and  executrix  of  the  testator,  made 
a  codicil,  and  after  giving  certain  legacies  "  confirms  her  will  in 
all  respects,  except  as  to  the  legacies  hereby  altered ;"  'at  the 
time  of  making  this  codicil  Robert  Hamilton  was  dead,  but  had 
left  children. — She  lived  to  1810,  and  then  died. 

The  case  was  argued  at  great  length,  by  W.  D.  Evans,  Duck- 
worth and  Lyon,  Sugden,  J.  Williams,  and  Richards,  for  differ- 
ent parties. 

It  was  admitted  that  the  heir  could  not  be  put  to  his  election, 
Judd  V.  Pratt,  15  Ves.  390.  Euans,  in  support  of  the  appeal, 
insisted  that  the  appointment  by  the  will  was  valid  at  law,  and 
the  equitable  doctrine  did  not  apply  in  this  case,  because  the  ap- 
pointee of  the  illusory  share  died  in  the  life-time  of  the  testatrix. 
Illusory  appointments  have  only  been  relieved  against  at  the  suit 
of  parties  deluded.  The  original  equity  is  personal.  The  doc- 
trine ought  not  to  be  extended,  for  it  is  against  the  intention. 
The  rule  requires  a  fair  distribution.  The  general  doctrine  has 
been  confined  by  the  late  cases,  Spencer  v.  Spencer,  5  Yes.  362  ; 
Butcher  v.  Butcher,  9  Yes.  381,  16  Yes.  15.  The  doctrine  does 
not  prevail  where  there  is  a  provision  aliunde.  This  shows  the 
personal  nature  of  the  equity.  But  at  all  events,  the  subsequent 
codicil  made  good  the  will.  On  Robert's  death,  she  might  ex- 
clude him,  his  children  and  representatives.  She  could  not  have 
made  an  appointment  in  his  favour.  The  codicil  is  executed  by 
two  witnesses. 

Sug-den,  contra,  contended  that  the  power  did  not  authorize 
an  exclusive  appointment,  Kemp  v.  Kemp,  5  Yes.  849, 
[  *597  ]  and  that  Robert  *was  not  sufficiently  provided  for  so  as 
to  authorize  the  widow  to  exclude  him  in  effect,  5  Yes. 
861  ;  2  Scho,  and  Lcf.  151 ;  1  Yes.  and  Bea.  97.  The  appoint- 
ment, therefore,  by  the  will,  was  illusory  and  void,  and  the  codicil 
did  not  give  effect  to  it  as  a  new  will,  or  operate  as  an  appoint- 


APPENDIX.  551 

ment,  Holmes  v.  Coghill,  7  Ves.  499,  12  Ves.  206 ;  Lane  v. 
Wilkins,  10  East,  241 ;  Hamilton  v.  Royse,  2  Scho.  and  Lef. 
315  ;  Cadogan  v.  Sloane,  App.  No.  24,  to  6th  edit,  of  Sugd.  on 
Purch.  The  will  must  stand  as  it  did  at  the  time  of  making  it. 
For.  26. 

Mr.  Justice  Le  Blanc   (after  having  taken  time  to  consider) 
pronounced  the  following  judgment : 

It  was  fully  admitted  by  counsel  for  the  Appellant  that  the 
appointment  of  the  moiety  in  the  will  of  Mary  Hamilton  could 
not  be  supported,  inasmuch  as  it  gave  one  shilling  only  to  Robert 
Hamilton,  one  of  the  cousins  of  the  testator  ;  and  whatever  doubts 
may  have  arisen  in  a  court  of  equity,  as  to  what  is  to  be  consid- 
ered a  proper  appointment  of  this  moiety  under  the  will  of  the 
testator,  there  can  be  no  doubt  that  the  appointment  in  this  will 
executed  by  Mary,  wife  of  the  testator,  was  the  same  as  no 
appointment  at  all ;  but  then  it  was  contended  that  the  person  to 
whom  this  residuary  bequest  had  been  made  was  to  be  considered 
as  not  existing  at  the  time  her  codicil  was  made  ;  and  if  he  was 
not  to  be  considered  in  existence,  none  of  the  parties  could  take 
advantage  of  the  will  as  if  he  had  been  living  when  the  codicil 
was  made.  It  was  further  contended,  that  this  codicil  of  1806 
operated  as  a  new  deed.  Robert  Hamilton  was  dead,  and  taking 
that  to  be  so,  no  appointment  could  be  made  to  him,  because  he 
was  out  of  the  way.  Now,  whatever  weight  this  might  carry, 
under  a  supposition  that  Robert  Hamilton  had  left  no  issue,  it 
appears  to  us  that  his  having  left  issue  is  an  answer  to  this  objec- 
tion, and  suflBcient  to  decide  the  present  question  before  the 
Court.  It  is  observed,  that  the  original  testator,  Robert  Hamil- 
ton, considers  to  whom  he  will  give  this  moiety,  and  his  mind  is 
obviously  bent  on  the  persons :  he  describes  them  as  his  cousins, 
and  then  he  particularizes  the  stock  from  which  his  cousins  spring: 
namely,  the  children  of  his  late  uncles,  Robert  Hamilton  and  John 
Hamilton,  and  of  his  aunt  Mary  Hobson.  In  addition  to  those, 
he  mentions  his  cousin  Thomas  Davenport,  the  children  of  his 
uncle  Edward  Holt,  and  the  grandchildren  of  his  uncle  Robert 
Holt,  which  shows  he  meant  his  cousins  once  removed,  and  that 
he  had  no  intention  to  convert  his  estate  to  the  use  of 
the  children  of  uncles  and  aunts  farther  removed  ;  *and  [  *598  ] 
when  he  states  that  it  is  for  such  children  who  stand 


552  SUDGEN  ON  POWERS. 

in  the  place  of  their  parent  or  parents  deceased,  it  clearly  proves 
that  it  was  his  will,  at  all  events,  the  children  should  stand  in  the 
place  of  their  parents,  as  to  any  benefit  the  deceased  cousins  were 
to  derive  under  this  will ;  and  it  is  clear  that  in  case  an  aj)point- 
ment  had  been  made,  the  benefit  was  to  be  derived  by  those  per- 
sons. Tlie  interest  of  tliis  moiety  being  by  her  to  be  disposed  of 
according  to  her  husband's  will,  could  it  be  said  that  she  had  the 
power  to  apply  it  diiTei'cntly,  and  create  a  new  interest  after  her 
death  ?  The  testator  has  clearly  distinguislied  the  persons  to  be 
benefited,  by  directing  it  to  go  in  a  regular  line,  namely  among 
those  whom  he  considers  llie  children  of  his  uncles,  and  it  is  clear 
to  me  that  he  was  contemplating,  at  the  time  he  made  his  will, 
the  death  of  those  who  might  die,  and  the  interest  of  those  who 
might  outlive  them.  If  his  wife,  at  whose  death  the  appointment 
could  not  take  place,  knew  the  way  this  interest  would  apply,  and 
appointed  it  to  go  contrary  to  the  will  of  the  testator,  of  course 
it  decides  the  question  ;  for  in  that  case  will  the  appointment  be 
looked  at,  or  will  her  codicil,  by  which  she  confirmed  her  appoint- 
ment, be  valid?  It  cannot  be  valid,  inasmuch  o,s  it  has  appointed 
this  moiety  wliilc  there  were  otliers  in  existence  to  whom  some 
appointment  ouglit  to  have  been  made,  and  to  whom  none  was 
made,  videlicet,  Robert  Hamilton  and  his  issue.  There  were  his 
children,  who  ought  to  stand  in  his  place,  and  have  such  appoint- 
ment of  shares  as  a  court  of  equity  might  limit.  I  have  considered 
this  question ;  and  my  opinion  is,  that  the  object  of  the  testator's 
will  was  to  give  this  moiety  to  his  cousins,  and  that  his  putting 
the  children  in  the  situation  of  the  parent  or  parents  is  a  clear 
definition  of  his  will ;  such  we  think  was  the  intention  of  the 
testator ;  his  object  was  to  put  the  children  in  the  situation  of  the 
parent  in  respect  to  this  moiety,  and  it  matters  not  how  the  will 
gives  the  power  of  appointment  to  the  widow.  Could  it  be  con- 
tended, if  all  the  cousins  had  died  in  her  life-time,  and  had  left 
children,  the  wife's  power  of  appointment  would  have  enabled  her 
to  appoint  to  one  child  in  exclusion  of  the  whole,  especially  after 
the  testator  had  selected  the  children  of  his  uncles  and  aunt  to  be 
objects  of  his  bounty  ?  Supposing  that  all  the  children  of  his 
uncle  should  be  dead,  the  testator,  at  the  time  of  making  his  will, 
directs  that  the  child  or  children  of  his  cousins  deceased,  either 
at  the  time  of  making  his  will,  or  who  may  die  during  the  life  of 


APPENDIX.  553 

his  wife,  shall  be  entitled  to  such  interest  or  benefit  as  the  parent 
or  parents  would  have  been  entitled  to  in  case  they  had 
survived  his  wife.  He  describes  *Robert  Hamilton,  [  *599  ] 
John  Hamilton,  and  Edward  Holt,  his  uncles,  and  Mary 
Hobson,  his  aunt,  as  the  stock  which  is  to  Ijc  benefited,  and  the 
descendants  of  those  persons  were  to  receive  benefit  in  the  ap- 
pointment of  the  moiety  by  the  widow.  For  this  reason  it  appears 
to  me  that  the  appointment  in  the  will  of  Mary  Hamilton  is  inval- 
id ;  and  therefore  the  fund  becomes  applicable  to  the  use  of  the 
will  of  the  testator.  I  therefore  shall  submit  to  the  Chancellor 
of  the  Duchy,  that  the  decree  of  the  Vice-Chancellor,  declaring 
the  appointment  by  the  testatrix  illusory  and  void,  should  be 
affirmed,  and  the  costs  of  all  the  parties  paid  out  of  the  fund : 
and  the  decree  of  the  Vice-chancellor  was  accordingly  affirmed. 


No.  24. 

Observations  on  Hills  v.  Downton.(g') 

"  The  ground  of  my  determination  seems  to  have  been  misun- 
derstood. I  was  of  opinion  in  Chapman  v.  Gibson,  that  the  heirs 
being  persons  for  whom  the  testator  was  under  no  natural  or 
moral  obligation  to  provide,  there  was  no  occasion  to  inquire 
whether  the  heirs  were  provided  for  or  not.  I  did  indeed  say,  in 
that  case,  they  having  jjarents  alive  whose  circumstances  did  not 
appear,  they  could  not  be  presumed  to  be  wholly  unprovided  for. 
1  found  it  so  often  laid  down,  that  the  Court  would  supply  the 
want  of  a  surrender  against  an  heir,  if  he  was  not  wholly  unpro- 
vided for,  and  so  many  dicta,  that  if  he  was  in  that  situation  the 
Court  would  not  compel  him  to  surrender,  that  I  thought  it  proper 
to  enter  rather  largely  into  the  consideration  of  the  principles 
upon  which  the  Court  acted  in  supplying  surrenders  ;  and  I  col- 
lected the  principle  to  be  this,  that  the  heir  shall  be  compelled  to 
make  good  the  disposition  of  his  ancestor,  if  made  in  discharge  of 
a  moral  or  natural  oljligation,  as  in  favour  of  creditors,  wife  and 
children ;  but  still  they  had  not  done  it  where  the  heir,  lieing  a 


Vol.  H.  47 


(g-)  Vide  supra,  vol.  2,  p.  109. 


654  SUGDEN   ON   POWERS. 

Bon,  could  show,  that  if  he  was  compelled  to  make  that  surrender, 
the  consequence  would  be  (he  being  a  son  wholly  unprovided  for,) 
that  he  would  be  compelled  to  fulfil  the  intentions  of  his  father  in 
discharge  of  a  moral  or  natural  oltligation  in  favour  of  a  widow, 
or  of  his  brothers  and  sistoi-s,  when  it  was  manifest  that  he  had 
neglected  to   discharge  the  natural  obligation  ho  was  under  of 

providing  fur  him,  his  eldest  son.  I  admit  that  it  had 
•[  "GOO  ]  been  laid  *down,  that  the  Court  would  not  enter  into 

the  quantvm  of  provision,  of  which  it  is  declared  the 
father  is  the  proper  judge  ;  and  feeling  all  the  difficulties  arising 
from  the  exception  so  often  made  to  the  rule  of  an  heir  wholly 
unprovided  for,  I  shall  be  very  glad  to  find  that  for  the  future  the 
Court  may  be  at  liberty  to  get  over  this  exception  to  the  rule. 
But  if  the  case  of  a  son  wholly  unprovided  for  were  to  come 
before  me,  I  should  hesitate,  notwithstanding  the  great  authority 
of  the  Lord  Chancellor,  to  make  a  decree  against  him ;  and  was 
very  glad  to  be  relieved,  in  the  case  of  Chapman  v.  Gibson,  from 
the  necessity  of  deciding  upon  that  point,  it  being  perfectly  clear 
that  the  principle  could  not  apply  to  the  case  of  a  collateral  heir, 
for  whom  the  testator  was  not  under  any  obligation  to  provide. 

"R.  P.  A." 


No.  25. 

Leadi  v,  Campbell. 

Reg.  Lib.  A.  1778,  fol.  698. (A) 

The  power  of  leaMiig  is  stated  correctly  in  Ambler. 

The  original  bill  stated,  that  Leach  pretended  that  by  Inden- 
ture, dated  10th  March,  1759,  Pryce  Campbell,  in  consideration 
of  former  covenants,  and  for  other  considerations  did  demise  and 
grant  to  Leach  all  the  mines,  veins,  pits,  groves,  rakes,  beds,  and 
holes  of  lead,  lead  ore,  and  all  other  mines,  which  were  or  should 
at  any  time  during  the  demise  be  found  out  in  or  under  the  lands, 


^ 


(h)  Vide  supra,  vol.  2,  p.  137. 


APPENDIX.  555 

with  full  license  to  open  pits,  &c.,-and  work  the  mines  and  to 
make  drains,  &c.  with  right  of  way  to  carry  away  the  ore,  and 
liberty  to  build  forges,  &c.  To  hold  from  25th  March,  1759,  for 
2(3  years,  paying  unto  Pryce  Campbell,  his  heirs  and  assigns,  dur- 
ing the  continuance  of  the  demise,  the  eighth  tondish  of  all  the 
lead,  &c.,  which  should  be  got ;  the  lessee  to  cleanse  and  deliver 
the  same  on  the  banks  every  tliree  months,  or  oftener  if  required. 
That  the  defendant  insisted  the  lease  was  good  under  the  power : 
But  the  plaintiff  submitted  that  the  lease  was  absolutely  void,  not 
being  authorized  by  the  povvjer  ;'  but  that  such  power  was  intended 
to  extend  to  messuages  or  lauds  only,  and  not  to  mines,  as  a}> 
pcared  from  the  condition  of  the  said  power,  that  there  should  not 
be  contained  iu  any  lease  any  clause  whereby  any  power  should 
be  given  to  any  lessee  to  commit  waste,  which  condition  could  not 
be  com})lied  with  in  a  lease  of  mines,  a  restraint  from 
"^commission  of  waste  being  totally  inconsistent  and  [  *601  ] 
contradictory  to  a  lease  of  mines  ;  and  the  plaintiff  also 
submitted,  that  if  the  power  should  be  construed  to  extend  to 
mines,  yet  the  lease  was  not  within  the  power  ;  for  the  lease  being 
made  for  26  years,  was  made  for  a  longer  term  than  the  power 
authorized,  which  was  only  21  years.  And  that  the  lease  being 
ilated  the  18th  of  March,  1759,  and  it  being  expressed  Leach 
-liould  enjoy  the  premises  from  the  25th  of  that  month,  the  STTtne 
was  in  reversion,  whereas  the  power  declared  that  the  leases 
should  be  in  possession  only.  And  that  the  reserved  rent  was 
not  thereby  made  incident  to  the  reversion  of  the  premises,  as 
was  required  by  the  terms  of  the  power,  but  was  nmde  payable 
to  Campbell,  his  heirs  and  assigns.  And  also  that  such  rent  was 
not  a  yearly  rent,  nor  was  it  the  most  improved  rent  which  at  the 
time  of  the  lease  could  be  got  for  the  mines.  The  rent  ought  to 
have  Ijcen  a  fourth  instead  of  the  eighth  ;  in  corroboration  of 
which  the  produce  of  the  mines  was  stated  ;  and  it  was  insisted 
that  Leach  deceived  Campbell,  the  lessor,  who  relied  on  his  infor- 
mation. 

•  The  answer  admitted  the  lease  to  be  in  effect  as  stated.  Leach 
stated  that  he  had  opened  no  new  mines  since  the  death  of  Camp- 
bell, or  the  making  of  the  lease  ;  he  insisted  upon  his  right  to  the 
open  mines  at  the  time  of  the  lease,  which  had  been  worked  by 
him  since  1743,  under  q,  lease  for  21  years,  at  a  great  expense. 


556  SUGDEN   ON   POWERS. 

And  he  submitted  that  the  parties  intended  the  power  to  extend 
to  mines,  as  the  mines  were  at  the  time  of  the  marriage,  and 
many  years  before,  in  his  possession. 

He  stated,  that  he  being-  in  possession  of  a  lease  for  21  years, 
commencing  on  the  8th  June  IToo,  ending  in  June  17G4,  P.  Camj> 
bell  agreed  to  add  twenty-one  years  to  his  term.  By  the  lease 
for  2G  years,  the  term  of  21  years,  within  a  few  months,  was  add- 
ed to  the  then  subsisting  term. 

He  insisted  that  the  rent  was  incident  to  the  reversion ;  that 
the  reservation  quarterly,  or  oftcncr,  was  more  beneficial  than 
being  reserved  yearly,  and  that  the  rent  was  the  best  that  could 
be  got.  That  after  the  lease  of  1759,  and  with  a  view  to  his  en- 
joying for  26  years,  he  laid  out  large  sums  in  making  levels,  &c. 
from  several  of  which  he  had  yet  received  no  advantage,  although 
between  the  25th  of  March  1759,  and  the  15th  of  June  1771,  he 
had  paid  above  33,000/.  in  making  and  repairing  the  works. 

He  likewise  stated,  that  in  1703  he  agreed  to  erect  smelting 
works  upon  the  waste  lands  of  Pryce  Campbell  near  the 
[  *602  ]  mines  ;  and  made  proposals  *to  Campbell  for  taking  a 
longer  term  in  them  than  in  the  mines,  or  that  a  compen- 
sation should  be  made  for  them  at  the  end  of  the  lease  of  the  mines. 
P.  Campbell,  after  considering  the  proposals,  did  by  letters  to  the 
defendant  in  1763,  declare  that  he  would  by  all  means  have  the 
works  go  on  ;  and  that  as  he  should  not  grant  any  lease  of  that 
for  a  longer  term  than  the  mines,  it  was  but  reasonable  that  a  sum 
should  be  agreed  upon  to  be  paid  to  the  defendant  upon  the  ex- 
piration of  the  said  term,  the  works  being  left  in  good  repair,  and 
the  tools  to  be  bought  by  appraisement ;  and  that  if  the  mill  was 
left  in  perfect  good  repair,  he  (P.  Campbell)  should  think  what  the 
defendant  demanded  (half  of  the  sum  laid  out  in  building  it)  not 
at  all  unreasonable,  and  that  the  defendant  would  always  find 
him  very  ready  to  do  what  he  thought  was  so.  And  P.  Campbell 
intimated  his  intention  of  becoming  a  partner,  which  he  after- 
wards declined."  That  in  consequence  of  the  lease,  and  letters  of 
agreement,  the  works  were  erected ;  but  a  regular  agreement  waft 
omitted  to  be  executed  until  1768,  when  P.  Campbell,  informed 
the  defendant  that  he  would  have  articles  drawn  relating  to  the 
works  :  but  lie  died  in  that  year,  without  liaving  executed  any. 

The  answer  insisted  upon  the  lessee's  right  to  the  enjoyment  of 


APPENDIX.  667 

the  term,  at  least  during  the  residue  of  21  years  from  the  making 
of  the  lease. 

The  Master  of  the  Rolls  made  the  order  stated  ^in  Ambler. 
Then  a  cross-bill  was  filed  by  Leach  for  establishing  the  lease  and 
agreement.  Tlie  Master  of  the  Rolls  directed  the  account  pray- 
ed by  the  original  bill,  and  dismissed  the  last  bill. 

I  met  with  an  order  for  the  hearing  on  the  appeal,  but  could 
not  discover  the  decree  on  the  appeal,  or  any  subsequent  proceed- 
ings, although  I  searched  with  attention  to  the  end  of  the  year 
1777,  for  the  original  as  well  as  the  cross-case. 


No.  26. 

Lane  v.    Terry. 

Reg.  Lib.  B.  1753,  fol.  527.(0 

It  was  charged  by  the  Ijill,  that  it  was  previously  to  the  mar- 
riage agreed  that  the  wife  should  not  have  the  benefit  of  the  join- 
ture ;  and  that  Terry,  in  trust  for  whom  it  was  executed,  threat- 
ened to  throw  Simon  into  prison  if  he  refused  to  come 
into  the  measure  ;  That  Simon  *labored  under  a  mortal  [  *603  ] 
disease,  of  which  he  soon  after  died,  and  was  greatly 
impaired  in  his  senses  as  well  as  his  health,  and  in  that  situation 
Terry  prevailed  on  him  to  marry  Ann,  ivilh  lohom  he  never  co- 
habited; and  the  plaintiil'  submitted,  that  the  intention  of  the 
power  was  to  make  a  handsome  provision  for  the  donee's  wife, 
and  thereby  enable  him  to  marry  one  of  circumstances  suitable  to 
his  own  and  not  by  colour  of  such  jointure  to  pay  his  own  debts, 
to  which  the  premises  were  not  liable,  whereas  the  jointure  set 
up  was  in  fact  a  settlement  on  Terry. 

It  was  decreed,  "  that  the  settlements  by  deeds  of  lease  and 
release,  and  the  paper  writing  intitled.  Proposals  upon  executing 
the  Marriage  Deed,  were  to  be  considered  as  one  entire  agree- 
ment ;  and  that  the  said  agreement  and  settlement  ought  to  be 
deemed  in  this  Court  fraudulent  and  void,  except  as  to  the  an- 
nual sum  of  20/.,  provided  for  the  benefit  of  Ann  Lane  during  Tier 

(i)  Vide  supra,  vol.  2,  p.  1S5. 

47* 


i58 


SUGDEN   ON   POWERS. 


life ;  and  it  was  ordered  and  decreed  tiiat  the  same  should  be  set 
aside,  except  as  to  the  said  aundal  sum  of  20//' 

Note. — The  wife  conveyed  to  Terry,  after  the  death  of  her 
husband,  upon  the  trusts,  as  stated  in  Ambler. 


No.  27. 

Aleyn  v.  Belchier.(k} 

Reg.  Lib.  A.  1757,  fol.  432  (B). 

The  estate  in  question  was  devised  to  trustees  in  fee,  to  raise 
money  by  mortgage,  and  to  uses,  under  which  Edmund  Aleyn  was 
tenant  for  life,  "  with  power  to  him  to  make  a  jointure  of  the  ma- 
nors, lands  and  premises  aforesaid,  or  any  part  thereof,  upon  any 
wife  whom  he  should  after  think  fit  to  marry,  for  her  life,  and  in 
bar  of  her  dower." 

The  trustees  under  a  decree  mortgaged  to  Belchier  in  fee. 

Edmund  Aleyn,  shortly  after  his  marriage,  without  any  previ- 
ous agreement,  proposed  to  make  a  provision  for  his  wife ;  and 
being  then  indebted  to  Belchier,  l)y  an  agreement  bearing  date 
the  1st  day  of  August,  1760,  and  made  between  Aleyn  .and  his 
wife  of  the  one  part,  and  Belchier  of  the  other,  reciting  the  mat- 
ters aforesaid,  and  that  Aleyn  was  indebted  to  Belchier  in  a  cer- 
tain sum  ;  it  was  witnessed,  that  in  full  satisfaction  of 
[  *604  ]  that  sum  Aleyn  covenanted  to  procure  a  *conveyance 
and  settlement  to  be  made  by  the  trustees  of  the  estates 
devised  to  them,  to  the  uses,  &c.  in  the  will ;  and  immediately  after 
such  settlement,  to  limit  the  same  to  his  wife  for  her  life,  in  case 
she  should  survive  him,  for  her  jointure  ;  and  tliat  he  and  his 
wife,  as  soon  as  they  should  become  seised  of  the  said  estates 
for  their  lives,  would  ])y  fine  &c.  convey  the  same  to  the  use  of 
Belchier,  or  as  he  should  appoint,  for  the  lives  of  Aleyn  and  his 
wife,  and  the  survivor  of  them :  in  consideration  whereof  Bel- 
chier covenanted  to  pay  the  following  annuities,  &c. ;  viz.  to  the 


(it)  Tide  supra,  vol.  2,  p.  185.  303. 


APPENDIX.  659 

wife,  for  the  joint  lives  of  licr  and  her  husbund,  an  annuity  of  60/. 
for  her  separate  use  ;  an  annuity  of  <J0/.  per  annum  to  Aleyn,  if 
he  should  survive  his  wife ;  and  100/.  a  year  to  the  wife  if  she 
^hould  survive  him  ;  and  to  the  wife's  son  by  a  former  husband, 
100  guineas  at  twenty-one,  and  61.  a  year  in  the  meantime  for 
maintenance.  A  settlement  was  afterwards  executed  by  the 
trustees,  and  Aleyn  limited  the  estates  to  his  wife  for  her  life 
under  the  power,  subject  to  the  mortgage  made  by  the  trustees 
to  Belchier,  and  afterwards  Aleyn  and  his  wife  conveyed  their 
life-estates  by  a  fine  to  a  trustee  for  Belchier.  Belchier  insisted 
that  the  settlement  was  a  good  and  effectual  settlement,  and  was 
made  upon  a  good  and  valuable  consideration,  and  was  not  void, 
and  that  he  was  entitled  to  the  benefit  of  it. 

The  remainder-man  stated  that  he  was  advised,  that  in  case 
the  power  of  jointuring  was  executed  by  Edmund  Aleyn,  for  any 
other  purpose  than  for  a  fair  jointure  for  his  wife,  such  execution 
was  contrary  to  the  intention  of  the  testator,  and  a  fraud  upon 
the  remainder-man. 

It  was  decreed,  "  that  the  deed  of  appointment  was  not  to  be 
supported  in  this  Court  any  further  than  to  charge  the  premises 
with  the  annual  sum  of  100/.,  agreed  to  be  paid  by  the  deed  of 
1st  August  to  Jane  Aleyn,  the  wife  of  Edmund  ;"  and  directions 
were  given  accordingly.  ^^^ 


No.  28. 
Read  v.   Shaw^lS01.{l} 

Power  to  trustees  to  sell  or  exchange  in  the  usual  manner ; 
Money  to  be  invested  in  the  purchase  of  other  messuages,  tene- 
ments or  hereditaments,  to  be  conveyed  to  the  same  uses.  The 
trustees  in  exercise  of  the  power  conveyed  tlie  estate 
to  a  purchaser,  in  consideration  of  *1,700/.  And  the  [  *605  ] 
purchaser,  in  consideration  of  the  like  sum,  granted  to 
the  trustee  a  perpetual  annuity  of  T^/.  106'.  out  of  the  estate,  to 
the  use  of  the  settlement ;  and  he  covenanted  to  lay  out  3,000/. 


(l)  Vide  supra,  vol.  2,  p.  488. 


660  SUGDEN   ON    POWERS. 

in  building  on  the  estate.  The  i)urchaser  artcrwards  sold,  and 
tiled  a  bill  to  enforce  the  pur<;haser  from  him  to  complete  the 
contract.  And  on  the  coming  on  of  the  cause  the  title  was,  with- 
out argument,  referred  to  the  Master  ;  and  by  his  report,  after 
stating  deeds  of  the  5th  and  6th  October,  1780,  the  1st  and  2d 
February,  1706,  and  the  3d  and  4th  February,  1796,  and  the  14th 
and  loth  March,  1706,  and  the  21st  and  22d  March,  1706,  the 
Master  finds,  by  a  case  stated  for  the  opinion  of  counsel  on  the 
part  of  the  plaintilVs,  of  which  the  defendants  have  notice,  and  the 
deeds  of  the  I4th  and  loth  days  of  March,  1796,  and  of  the  21st 
and  22d  days  of  the  same  month,  were  merely  formal,  executed 
under  the  advice  of  counsel,  for  the  purpose  of  ap*parcntly  com- 
plying with  the  requisites  of  the  aforesaid  power  of  sale  contained 
in  the  marriage  settlement  of  the  6th  day  of  October,  1780,  but 
that  the  real  contract  between  the  vendors  and  the  purchasers  in 
that  transaction  was  a  sale  of  the  freehold  premises  in  considera- 
tion of  the  aforesaid  rent-charge  issuing  out  of  the  same  premises 
only  with  the  aforesaid  covenant,  to  lay  out  the  said  sum  of  3,000/. 
in  improving  the  same  ;  and  he  was  of  opinion  that  such  transac- 
tion was  not  a  due  execution  of  the  power  to  sell,  or  of  the  power 
to  exchange,  contained  in  the  aforesaid  marriage  settlement,  for 
which  reason  he  certified  that  the  plaintiffs  could  not  make  a  good 
title  to  the  freehold  part  of  the  premises  in  question. 

Exceptions  were  taken  to  this  report,  but  they  were  never 
argued,  and  the  plaintiffs  consented  to  rescind  the  contract,  and 
to  pay  the  purchaser's  costs. 


No.  20. 

Pope  V.    Whitcombe. 

Reg.  Lib.  B.  1809,  fol.  1535. (»i) 

Bill  filed,  by  W.  Pope,  executor  of  Mary  Childe,  for  an  ac- 
count of  personal  testator  and  testatrix  (the  Childes)  then  re- 
maining unadmmistered.     That  the  funeral  expenses,  debts,  and 

(m)  Vide  supra,  vol.  2,  p.  247.  251. 


APPENDIX.  561 

legacies  might  be  paid  in  a  due  course  of  administration  ;  that 
the  clear  residue  of  testator'' s  personal  estate  might  be  ascertain-^ 
ed,  and  might  be  applied  and  paid  to  the  several  persons  entitled 
thereto  under  will  of  testator. 

•States  the  will  of  Mary  Childe,  27  May,  1799  ;  taking  [  *606  ] 
notice  that  she  had  the  disposal  and  appointment  of  her 
husband's  property  amongst  his  relations,  (her  son,  James  Childe, 
being  dead  ;)  devises  the  freeholds  and  leaseholds  to  John  Whit- 
combe  and  his  sister,  Elizabeth  Hawford,  their  heirs,  &c;  as  ten- 
ants in  common.  Residue  of  the  estate  and  effects  of  testator  she 
gave  as  follows  :  20/.  to  John  Whitcombe,  remainder  to  John 
Whitcombe,  his  executors  and  administrators,  upon  trust  for  Eliza- 
beth Hawford  for  her  seijarate  use  for  life,  after  her  decease  upon 
trust,  as  to  one  moiefy,  fur  John  Whitcombe,  of  Gosport,  the  otlier 
to  the  issue  of  Elizabeth  Hawford,  as  therein  mentioned.  The  de- 
cree was  for  an*  account  of  the  personal  estate  of  John  Childe,  the 
testator,  that  what  should  be  found  due  from  testatrix,  Mary 
Childe,  should  be  a  debt  from  her  estate  ;  that  testator's  personal 
estate  should  be  applied  in  payment  of  debts,  <fec.  An  account  of 
personal  estate  of  Mary  Childe.  Master  to  inquire  who  were  the 
next  of  kin  of  testator  living  at  the  time  of  his  death,  and  at  the 
death  of  testatrix,  Mary  Childe  ;  and  if  any  dead,  when  thcj'  died, 
and  also  personal  representatives  ;  and  whetlier  John  Whitcombe, 
William  Hawford,  and  Elizabeth  his  wife,  and  Elizabeth  Hawford 
and  Sophia  Hawford  (residuary  legatees  under  will  of  Mary)  were 
in  any,  and  what  degree,  related  to  testator. 

1808,  May  17,  Master's  report  stated  the  result  of  the  accounts, 
and  the  will  of  the  testator,  1781,  March  22,  shortly.  As  to  in- 
quiry as  to  next  of  kin,  &c.  the  Master  found  that  the  late  defend- 
ant John  Childe  and  Thomas  Whitcombe,  since  deceased,  (who 
was  the  father  of  the  defendants,  Thomas  Whitcombe,  George 
Whitcombe,  Charles  Whitcombe,  Ann  Watts,  Elizabeth  Hawford, 
and  Mark  Antony  Whitcombe)  and  John  Whitcombe,  were  the 
only  next  of  kin  of.  the  said  testator,  James  Childe,  living  at  the 
time  of  his  decease;  the  said  John  Ciiilde  having  been  the  testa- 
tor's brother  of  the  half-blood,  and  the  said  Thomas  Whitcombe, 
since  deceased,  and  John  Wliitcombc,  having  been  the  nephews 
of  tiie  said  testator,  and  the  children  of  Elizabeth,  wife  of  John 
AV^hitcombe,  a  deceased  sister  of  the  said  testator ;  and  he  found 


562  SUGDEN   ON    POWERS. 

thai  the  said  testator's  said  nephews,  Thomas  Whitcombe  and 
John  Whiteuiubc,  both  died  in  the  life-time  of  the  said  testatrix, 
Mary  Childe ;  and  that  the  kite  defendant,  Juhn  Cliilde,  was  the 
only  next  of  kin  of  the  said  testator  living  at  the  deeease  of  the  tes- 
tatrix, which  happened  11th  Ajjril,  1800. 

He  found  that  neither  the  defendant,  John  Whitcombe,  nor  the 
late  defendant,  William  Hawford,  were  in  any  degree 
[  *G07  ]  related  to  the  *said  testator  ;  but  he  found  that  the  de- 
fendant, Elizabeth,  then  the  widow  of  the  late  defend- 
ant, William  Hawford,  was  the  great  niece  of  the  said  testator, 
James  Childe,  and  the  other  defendants,  Elizabeth  Hawford  and 
Sophia  Hawford,  were  the  great-nieces  of  the  testator  James 
Childe. 

1809,  June  10.  Order  of  Master  of  Rolls  on  further  directions. 
It  is  ordered  that  the  Master  do  tax  the  costs  ;  that  tlie  815/.  Hs. 
iid.  Bank  o  per  cent,  annuities,  standing  in  the  name  of  the  Ac- 
countant-general in  trust,  in  this  cause,  to  the  credit  of  the  per- 
sonal estate  of  the  testator,  James  Childe,  be  sold,  to  be  paid  into 
the  Bank.  It  is  ordered  that  the  costs,  as  therein  mentioned  be 
paid  :  that  the  several  sums  mentioned  in  the  fifth  schedule  to  the 
Master's  report,  reported  due  for  the  legacies  given  by  the  will 
of  the  testator,  and  interest  be  paid  to  such  legatees,  and  that 
the  *residue  thereof  be  paid  to  the  defendants,  Science  Childe  and 
Eleanor  Robinson  Childe,  as  the  personal  representatives  of  Johu 
Childe,  the  next  of  kin  of  the  said  testator. 

Declare  tliat  the  will  of  the  testatrix  is  not  a  valid  appointment 
of  the  residuary  estate  and  eli'ects  of  the  said  testator. 


INDEX. 


[Where  the  number  of  Ibe   pajre  is  only  inserted,  tbc  referemc  13 
to  the  first  volume.] 


*Tlie  pages  referred  to  are  those  between  brackets  [         ]. 


ACCEPTANCE,  ^ee  Feoffment. 

Rent. 
ACCIDENT.  See  Defective  Exe- 
cution. 
ACQUIESCENCE. 

may    amount  to  an   elec- 
tion ii.  151 
See  Remainder-man . 
ADA^  AN  CEMENT, 

its  operation  on  a  child's 
share  in  delaull  of  ap- 
pointment, and  on  the 
power  ii.  208 

See  Jlha^ory  A]->point7ncnt. 
AGREEMENT 

to  exercise  |)owers,  valid  ii.  117 
to  lease,  where  it  will   be 

enforced  ii.  132 

before  marriage  ,for  wife  to 
appoint   her   own     estate, 

valid  185 

before   marriage   for  a  set- 

"tlement  ii.  228 

for  a  settlement   where    it 
authorizes    a   power   of 
sale  and  exchange        ii.  459 
See     Articles.       Contract. 
Defective  Execution.  Pa- 
rol Contract. 
ANCIENT  RENT  ii.  399 

ANGER 
in  making  an  appointment 

ii.  193 


ANSWER  IN  CHANCERY, 
may   amount  in  equity  to 
the  execution  of  a  power 

ii.  116 

APPENDANT,  POWER, 

defined  40 

how  suspended  47 

bow  extinguished  66 

by  operation  of  law  bO 

how  merged  ^  65 

may  be  released  '""80 

to  arise  on  a  future   event 

may  be  defeasanced  90 

whether  it  can  be  released 

in  part,  qu.  ibid, 

power  to  tenant  for  life  to 
apoint  the  estate  to  his 
children,  is  appendant         99 
See    Bargain    and     Sale. 
Covenant  to  Stand    Seis- 
ed. Extinguishment. 
Fine.     Feoffment.     Mer- 
ger.    Suspension. 

APPOINTEE, 

of  a  share,  where  a  fur- 
ther appointment  to  him 
is  void  354 

takes,  from  what  time        ii.  23 
death  of  appointee  under 
will   does    not   defeat  a 
charge  on  the  estate  ap- 
pointed to  him  ii  14 


oG4 


INDEX. 


AVVOmTEK,—(ronfhmpd.) 
takes  the  whole   sura,  and 

any  loss  must  fall  on  the 

residue  ii.  20 

takes  llie  fund   subject   to 

his  (iebts  ii.  27 

and  if  a  volunteer,  subject 

to  appointor's  debts         ibid. 

APPOINTMENT, 

how  it  operates  174 

when    made   by    deed    532. 

ii.    10 

when  made  by  will  533  ii.  10 

validity  of,  when  to  be 
tried  at  law  ii.  180  j 

how  it  should  be  made         229  j 
where    there   is   both  a 
power  and  an  interest      412 
where  it  is  to  a  charity     254  | 

by  a  general  disposition       35G 
but  there   must  be  a  re-  I 

ference  to  the  fund       3G7  | 

where  there  are  several 
powers  358 

not  by  a  renewal  of  leases  3G6 
or   an    alteration  of  the 
funds  ibid. 

construction,  so  as  to  vest 
the  fee  230 

and  conveyance  of  the 
same  property  232 

operation  when  blended  233 

under  a  common  law  pow- 
er, how  it  operates  238 

passes  only  the  interest  of 
the  creator  of  the  power  243 

notice  of,  should  be  given 
to  trustee  244 

bad,  power  may  be  re- 
exercised  355 

of  part,  where  it  is  evi- 
dence all  is  to  pass  388 

how     it     operates     when 
blended    with    words  of 
conveyance  432 

may  be  made  upon  condi- 
tion 439 

takes  the  part  appointed 
entirely  out  of  the  set- 
tlement ii.  20 


whore  good  though    estate 

not  defined  ii.  78 

wliere  void  by  the  general 

rules  of  law  ii.  176 

where  void  in  equity  only  ii.  ISl 
effect  of  void  appointment 

11.  219 
See   Bi/l   Filed.     Brfavlt  of 
Appointment.  Defective 

Execution.     Escrow.     Ex- 
cessive Execution.     Execu- 
tion of   Powers.      Limita- 
tion.     Will.     Witnesses. 
APPORTIONMENT, 

where  rent  is  apportioned 

li.  122.  430 
where  rent  can  be  appor- 
tioned   under    lease    in 
part  void  ii.  421 

APPURTENANT,  POWER. 

See  Appendant 
ARTICLES     FOR    SETTLE- 
MENT, 
where   power  also    carries 

property  ii.  170 

where   clause  of  survivor- 
ship of  portions  imjilied  ii.  266 
where  power  to  raise  por- 
tions authorized  ibid. 
ASSETS, 

equitable  ii.  28 

ASSIGNS, 

who  are  under  a  power  to 
a  man  and  his  assigns 
ASSIGNEES, 

of   insolvents    may    exer- 
cise powers 
of  bankrupts   the    like 
ATTAINDER.     See  Treason. 
ATTESTATION, 

of    sealing    and    delivery 
bad   where   signature  is 
to  he  attested 
of  signing   does  not  cover 

publication 
of  delivery  does  cover  pub- 
lication 
"attest,"  its  signification 
defective,   made   good   by 
statute  where  307 


215 

oo;J 

224 


2S5 

306 

303 
279 


INDEX. 


565 


ATTORNEY, 

donee  of  a  power  cannot 
ajjpoint  an  attorney         213 

unless  the  deed  is  prepar- 
ed, semble  214 

or  the  power  is  tanta- 
mount to  an  ownership  215 

but  not  where  a  particular 
mode  of  execution  is  re- 
quired ibid. 

how  he  should  execute  his 
power  216 

AUTHORITY, 
'  what  are  common  law  au- 
thorities 1.  118 


348 


444 


where  it  survives  143  j 

how  to  be  executed  239 

where  countermandable       464 
See  Devise. 
BANKRUPTCY, 

where  a  prior  will  prevails 
over  the  creditors  ii.  235 

where  it  destroys  a  power      80 
although  a  joint  one  84 

does  not  transfer  a  power 
to  the  commissioners         224 

but  assignees  may  execute 
it  225 

Sec  Creditors. 
BARGAIN  AND   SALE, 

defined  4 

conveyance  by,  does  not 
destroy  power  where  86 

general  jiower  to  lease 
cannot  be  reserved  by  it  153 

contra  of  a  general  pow- 
er of  revocation  160 

in    execution  of  a    power 
need  not  be  enrolled  un- 
less required  by  the  pow- 
er 248 
BARON  AND  FEME, 

whether  he  can  be  com- 
pelled to  allow  her  to 
appoint  ii.  141 

may  ajipoin!  to  each  other 
under  powers  ii.  24 

husband  not  performing 
his  agreement,  wife  may 
retain  her  property         ii.  121 

Vol.  II.  48 


consideration  of  marriage, 

its  validity  ii.  228 

covenants    on    separation 

for  indemnity  ii.  232 

wife  not  included  in  a  gift 

to  relations  ii.  241 

mortgagees   of  wife's  es- 
tate, with   an   accurate 
proviso  for  redemption 
will  by  both  bad  as  an  ap 

pointment,  where 
liability  to  money  borrow- 
ed on  her  estate  ii.  21 
whether    appointment    to 
husband,  when  wife   is 
the  object,  is  valid        li.  275 
See    Defective    Execution. 
Feme   Covert.     Jointuring, 
Power  of. 
BEST  RENT                     ii.  397 
BILL  FILED 
for  a  transfer,  an  appoint- 
ment. 367 
BISHOPS'  LEASES         ii.  372 
BLIND  MAN, 

his  will  313 

BOND    AND    WARRANT  OF 
ATTORNEY 
by  a  feme    covert   not   an 
execution   of  a    power, 
semble 
BOONS, 

the    construction    of    the 

word  ii- 

BROKAGE.   See  Marriage, 

BROTHER.     See  Defective 

Execution. 
CANCELLATION, 
destroys   a   will    executed 
under  a  .power  ii 

does    not   destroy    estates 
created  by  deed  ii, 

CEREMONIES.      See     So- 
lemnities. 
CESSER 

of  power 
CHARGE, 

power  to,  when  executed 
the  extent  of  a  power  to 

515.  517 


408 


449 


10 
177 

114 

409 


566 


INDEX. 


CHARGE,— ( Continued.) 

power  to,  enables  a  charge 
of  interest  as  well  as 
principal  515 

power  to,  when  it  author- 
izes a  sale  or  mortgage    514 

]iower  to,  M'lien  it  exleiiils 
to  the  fee  517 

See  Estates. 
CHARITY, 

how  an  appointment  may 
be  executed  in  favour 
of  a  L'harity  .  253 

how  trustees  for  a  charity 
may  be  appointed         ii.  508 

CHILDREN,      rOWER       TO 
ArPOlNT  TO, 

power  to  a  tenant  for  life 
to  appoint  to  his  chil- 
dren, can  be  barred  90 

children     changing     their 
character,    as    youngest 
child    becoming    eldest, 
avoids    ap[)ointment    ii.  195. 
2G9 

general  power  restrained 
to  chiklren,  where  530,  ii.  252 

qualified  interest  cannot 
be  appointed  to  an  only 
child  <]98 

interest  of  an  only  child 
cannot  be  afTcctcd  if 
})OU'er  only  to  divide         502 

but  appointment  to  an  on- 
ly surviving  child  goo: I, 
where  he  would  not  oth- 
erwise take  all  503 

does  not  embrace  grand- 
children ii.  253 

but  they  may  be  appoint- 
ed to  with  the  child's 
consent  ii.  260 

child  in  ventre  sa  mere 
within  a  j)Ower  to  ap- 
point to  children  living 
at  the  parinit's  death  ii.  263 

embraces  what  children  ii.  263 

appointment  to  child's  exe- 
cutor void  ii.  260 


an  eldest  child  consid- 
ered a  younger,  and  a 
younger  an  elder,  where 

ii.  195,269 
how  the  fund  may  be  set- 
tled on  children  ii.  272 
power  to  appoint  to,  in  ar- 
ticles, gift  by   construc- 
tion to  the  objects         ii.  170 
fraudident  appointment  to 

a  child  ii.  184 

gift  to   child    with   invalid 
executory  gift  over  does 
not  aflect  the  child       ii.  256 
power  to  appoint  to   heirs 
of  the  body  ii.  265 

See  Advancement.  De- 
fective Execution.  Ex- 
clusive Appointment, 
Execution  of  Powers. 
Executors.  Father 
and  Child.  Illusory 
A])pointment. 

CIRCUMSTANCES.     See 

Solemnities. 
COHABITATION, 

where  it  is  a  good  consid- 
eration ii.  177 

COLLATERAL        POWERS. 
See  Gro.<;s,  Poivers  in.      Simply 
Collateral  Power. 
COMMISSIONERS       OF 
BANKRUPTS. 
See  Bankruptcy. 
CONCURRENT  LEASES, 
cannot  be   granted    under 
the  usual  power  of  leas- 
ing, semble,  ii.  376 
new  or  concurrent  leases 
synonymous  ii.  384 
CONCURRENT    INTER- 
ESTS, 
power  to  raise,  valid     178.  ^55 
CONDITION 
at  common  law  *  ii.  80 
cannot   be   annexed  to  an 
estate  created    under  a 
power  without  authority 

ii.  84.  277.  280 


INDEX. 


567 


440 

316 

332 


329 


319 


CONDITION,— (  Continued.) 
but  a  power  may  be   exe- 
cuted  upon  a  condition 
90. 
in  leases  under  powers    ii. 
for    lessor    to     determine 
lease,  valid  ii. 

whether  for   lessee,  qu. 
ii. 
CONDITIONAL  POWER 
cannot  be  executed  unless 
the  event  arise 

See  Sa/e  and  Exchange. 
CONFIRMATION 
of  powers,  what  amounts  to  96 
of  leases    by    remainder- 
man ii  310 
CONSENT 

made  requisite  to  the  exe- 
cution of  a  power,  must 
be  obtained 
death  of  the  person  to  con- 
sent destroys  the  power  ibid, 
so    the    death    of  one    of 

several  persons  ibid, 

unless  the  survivor  is  au- 
thorized to  consent       322 
what  amounts  to  a  consent  323 
the  power  to  consent  can- 
not be  delegated 
where   it    devolves    upon 

heirs 
cannot     be    given   subse- 
quently   to    the    execu- 
tion of  the  power     320. 
the  discretion  of  a  trustee 
to    consent    cannot    be 
controlled 
one     cons^ent      dispenses 
with  the  condition 
S(;e  Feme    Covert. 
CONSIDERATION, 

where  requisite  4 

bad  in  law  ii.  177 

what  is  sufficient,  to  avoid 
a  power  of  revocation 
under  the  statute  of 
Elizaljelh  ii.  225 

See  Cohabitation.  De- 
fective      Execution. 


325 
322 

324 

327 
328 


See  Dower.     Marriage. 
Perjury. 
CONSTRUCTION         OF 

POWERS  476 

CONTEMPT.     See  Croivn. 
CONTINGENT  FEE 
vesting   does   not  destroy 
power,  semble  1 11 

CONTINGENT  POWER 
when  to  be  executed  331 

See    Time. 
CONTINGENT  USES, 
how  executed  by  the  stat- 
ute 11 
CONTRACT, 
improper  contract  by  trus- 
tees relieved  against    ii.  122 
what  conveyance  under  a, 

revokes  a  will  ii.  G 

by  a  married  woman  with 
a  power  ii.  96 

See  Covenant.  De- 
fective Execution. 
Eqii  ty.  Futuro, 

Lease    in.        Parol 
Contract 
COPYHOLDS, 
feme  covert  may   exercise 
power  over  181 

COUNTERPART 
of  a  deed  creating  a  pow- 
er not  requisite  157 
memorandum  of  its  execu- 
tion should  be  indorsed 
on  the  lease                    ii.  442 
COUSIN.       See     Defective 

Execution. 
COVENANT, 
not    to     exercise      power 
without    consent   of    a 
third  person  90 

not  to  exercise  power, 
binds  appointee  with 
notice  ii.  194 

against  incumbrances  to 
be  done,  prevents  an 
appointnient  ibid, 

to  discharge  incumbranc- 
es, its  effect  on  an  ap- 
pointment ii.  112 


568 


INDEX. 


106 


26 


COVENANT,— ( Continued.) 

by  i^iantee  of  tenant  for 
life  to  confirm  leases 
under  the  power,  how 
it  operates  91 

to  sell,  revokes,  in  equity, 
a  will  under  a  power      ii.  10 

against  persons  claiming 
under  the  donee  of  a 
power  extends  to  whom  ii.  20 

limited,  will  not  cut  down 
the  estate  appointed       ii.  83 

general,  will  not  bind  a 
jointurin^^  power  ii. 

running  with  the  land  in  a 
person  taking  in  default 
of  appointment,  ceases 
upon  execution  of  the 
power  ii 

in  leases  where  it  runs 
with  the  land  ii.  316 

to  execute  a  power, 
equity  will  enforce  it 
where  ii.  115 

where  a  covenant  to  re- 
new in  a  lease  is  deem- 
ed fraudulent  ii.  122 

where  the  omission  of  cov- 
enants in  a  lease  is  a 
fraud  ii.  400 

what  covenants  must  be 
contained  in  leases  un- 
der powers,  where  the 
power  is  silent  ii.  443 

where  usual,  &c.,  cove- 
nants are  required         ii.  444 

the  introduction  of  an  im- 
proper covenant  is  as  fa- 
tal as  the  omission  of  a 
proper  covenant  ii.  449 

and  the  lease  cannot  be 
supported  because  the 
lessee  has  done  what 
he  ought  to  have  agreed 
to  do  ii.  451 

the  covenants  required 
must  be  expressly  in- 
serted ibid. 

go  to  remainder-man  and 
bind  him  ii.  316 


See  Re-entry, 
Sale      and 
Trustee. 


Power    of. 
Exchange. 


COVENANT       TO       STAND 
SEISED, 

defined  4 

conveyance  by,  does  not 
destroy  power,  where         86 

general  power  to  lease 
cannot  be  reserved  by  it  159 

contra  of  a  general  power 
of  revocation  160 

may  execute  a  power  247 

CREDITORS, 

where  relieved  against  a 
conveyance,  with  power 
of  revocation  ii.  234 

where  relieved  against  a 
conveyance,  by  an  ap- 
pointee under  previous 
contract  ii-  262 

entitled  to  a  fund  appoint- 
ed under  a  general  pow- 
er, in  preference  to  the 
appointee  ii-  27 

but  a  purchaser  from  the 
appointee  prevails  over 
them  ii.  28 

not    entitled    if    appoint- 
ment defective  ii.  102 
See  Bankruptcy. 
CROWN,  THE, 

may  commission  others  to 
execute  a  power  forfeit- 
ed by  treason  222 

may  extend  lands  over 
which  a  Crown-debtor 
has  a  power  o^  revoca- 
tion 223 

may  seize  the  lands  of  a 
person      in      contempt 
against  the  prerogative    223 
See    Treason. 
CUMULATIVE, 

where  powers  in  a  new 
settlement  are  1 1'J 

CY  PRES, 

where  it  is  applied  ii.  57 

See  Excessive  Execution. 


INDEX. 


569 


DAUGHTER, 

eklesl  dvuigliter  considered 
a  younger  child  when 
unprovided  for  ii.  270 

See  Execution  of  Powers. 
DEBTS, 
charge    of,    vvlierc    simply 
void  _        ii.  B6 

See  Appointee. 
DEBTOR,  CROWN.     See 

Orov;n. 
DEBTOR,    INSOLVENT, 
powers   in,    transferred  to 
his  assignees  223 

DEED, 
required,  the    power    can- 
not be  executed  l)y  will 

262.  255 
but  equity  may  aid  the  de- 
fect ii.  125 
power  to  be  exercised  by 
will  or  otherwise,  or   by 
will      or     appointment, 
may    be    exercised    by 
deed-  258 
where  a  power  may  be  ex- 
ecuted by  deed                  257 
in  form,  may  be  a  will  in 

suljstance  2G0 

required,  must  be  execut- 
ed as  a  [)roper  deed  280 
the  effect  of  a  deed   exe- 
cuted under  a  power         533 
cannot  '  be     revoked,    al- 
though     power      might 
have  been    executed  by 
will                                       274 
where  avoided  by  rasureii.  177 
not  by  cancellation          ibid. 
See        Consideration. 
Drunkenness.      Ex- 
cessive     Execution. 
Indorsement. 
DEFAULT  OF  APPOINT- 
MENT, 
limitations  in  are  vested, 

subject  to  be  divested     ii.  2 
so  of  personalty  ii.  5 

the  construction  of  gifts  in 

ii.  199 


gifts  by  implication  in      ii.  IGl 
where  a  fund  is  badly  ap- 
)K)inted   it    goes  in    de- 
fault of  a[)pointnient    ii.  219 
gift   in,    does    not    control 
power  ii.  220 

See         Advancement. 
Devise.  Dower. 

Relations. 

DEFAULT  THEREOF, 

its  construction  ii.  201 

where  corrected  in  a  set- 
tlement ii.  221 

DEFEASANCE, 

future  powers  may  be  de- 
feasanced  90 

DEFECTIVE  EXECUTION, 

by  one  instrument  not 
made  good  by  another 
supplying  that  defect, 
but  defective  itself  276 

Equity  relieves  against  a 
defective  execution  in 
favour  of  a  purchaser    ii.  93 

mortgagee  ibid, 

lessee  ibid, 

creditor  ibid, 

wife  ibid, 

legitimate  child  ibid, 

charity  ii.  91- 

marriage  consideration    ibid. 

the  relation  must  be  to  the 
donee*  ii.  97 

not  in  favour  of  a  natural 
ciiild  ii.  94 

husband  ibid, 

grandchild  ibid, 

brother  ii.  95 

sister  ibid, 

nephew  ibid, 

cousin  ibid, 

volunteer  ibid, 

settlor  ii.  99 

no  relief  against  a  legal 
consequence  as  a  lapse  ibid. 

by  a  married  woman  re- 
lieved ii.  96 


48* 


570 


INDEX. 


DEFECTIVE       EXECU- 
TION,—(  Cow^mz^y/.) 
a  deffcliv^o    execution   in 
favour  of  a  stranger  can- 
not be  sup[)lied  so  as  to 
give  the  tund  to  credit- 
ors, seinbl.  ii.  102  j 
person  applying  for  relief         j 
niast  have  a  preferahle  j 
equity                              ii.  103  , 
whether  he    must  be  un-  | 
provided  for                   ii.  108  ' 
a  defect  may  be  supplied          i 
although  all  the  oitjects          | 
are  children,  sembl.      ii   llli 
Equity  relieves  against  a 
defective  execution  where 
the  intention  appears  by 
covenant                         ii.  115 
request  by  will          ii.  116 
written  contract            ibid, 
promise  by  letters        ibid,  j 
recital  in  a  deed           ibid.  : 
answer  in  chancery     ibid.  | 
covenant    in    original  '■ 
deed                  ^     ii.  117  i 
sale  and   payment  of         j 
the  fund                     ibid. 
l)ut  there   must  be  a  re- 
ference to  tlie  fund      ibid.  - 
no  relief,  if  covenant  a 
fraud  upon  the  power 

ii.  123 
execution    of  power   of         ' 
jointuring    not    aided 
unless  the  party  come 
into  possession  ii.  119 

whether,  where  the  con-  I 

tract  is  by  parol         ii.  121  ' 
remainder-man  may  claim 
the    execution    of    a  j 

power  ii.  124 

Equity     relieves     against 

a  defective  execution  | 

although  by  deed  in-  , 

stead  of  will  ii.  125 

two  witnesses  instead  of 

three  ibid. 

a  seal  be  wanting        ibid. 
a  will  of  real  estate  ii.  126 


the  power  be  to  lease, 
where  ii.  131 

no  relief  if  execution 
against  the  nature  of 
the  [>ower  ii.  I2b 

ond  now  no  relief  where 
will  not  executed  ac- 
cording to  1  Vict.      ii.  12(i 
So    equity   will   relieve 

in  cases  of  fraud  ii.  140 
surprise  ii.  142 

accident  ibid, 

disability  ibid, 

election  ii.  1<J4 

satisfaction  ii.  155 

where  too  much  proper- 
ty is  included  ii.  121* 
but  non-execution  is  in 
general  not  aided      ii.  157 
unless    the    power   is 
in  nature  of  a  trust  ii.  16^ 
where  a  fund  is  defec- 
tively appointed  whol- 
ly or  in   part,  it  goes 
as   in    default   of  ap- 
pointment ii.  220 
two     defective     instru- 
ments   will    not    to- 
gether be  a  good  exe- 
cution 276 
where  a  defective  set- 
tlement will  be  aided 

ii.  115 
See  Median .      Satis/action. 
DELEGATION, 

powers  cannot  be  uelegat- 

ed  214 

unless   by   express   au- 
thority 215 
the  effect  of  a  void  dele- 
gation on  estates  limit- 
ed in  default  of  appoint- 
ment                        216,  ii.  72 
power  to  child  to   appoint 
a  sum  not  a  delegation 

ii.  272 
See  Attorney. 
DELIVERY, 

deed   required,  it  must  be 
delivered  277 


INDEX. 


>7l 


DELI  VE R Y,— (  Continued. ) 
of  an   instrument   execut- 
ing a  fiower,  where  un- 
necessary 276 
of  a  will,  a  publication 

285.  303 
DESCENT, 
appointee     under    a    will 
takes  by  descent,  where 
See  Elect.lon.    Illusory 
Appointment. 
DESTRUCTLON  OF  POW- 
•    ERS  'io 

UEVISE, 

where    it  passes  an  inte- 
rest, and  where  a  power  1?0 
to  trustees  and  their   heirs 

to  sell  not  a  power  only    12s 
to  executors   to   sell,  or  to 
be    sold    by    executors, 
the  ellecl  of  it  12<\ 

whether  a  devise  to  one  to 
uses  operates  under  the 
statute  171 

of  powers,  without  any 
seisin  to  serve  them  not 
within  the  statute  236 

general,  where  it  executes 

a  power  3G7 

distinction  between  gener- 
al and  particular  powers  368 
under  a  voil    power,  the 
testator's    interest   shall, 
support  the  disposition     424 
where  it  o()erates    to   exe- 
cute several  powers  3b3 
where  general  intent  shall 

prevail  ii.  56 

See     Limitations.        Ten- 
ants in    Common. 
DEVISEE 

of  a  power  with  an  inte- 
rest may  disclaim  ^(S 
not  a  trustee  of  a    power  j 
given  to  the  heirs,  &c       150' 
DISABILITY,     tioe  Defec- 
tive  Execution. 
DISCRETION. 

See  Donee.    Father  and 
Child.      Trustee.  I 


502 


134 


DISTRESS, 

want  of,  a  good   qualifica- 
tion   of    power    of    re- 
entry ii.  437 
DISTRIBUTION,  POWER 
OF, 
effect  of  part  execution  for 

one  of  the  objects         ii.  217 
ceases  where  there  is  ©nly 

one  object  502 

gift,  subject  to  ii.  168 

DiSTRl  B  UTIONS,  STAT- 
UTE OF.     See    Rela- 

DIVISION,  POWER  OF, 

gone,  where  only   one   ob- 
ject 
DONEE, 

of  a  power  by  will,  im- 
plied, where 

of  a  power  for  relations,  &c. 
nut  restrained  by  equity 

ii.  173.  244 

where  entitled  to  the  fund 
itself  ii.  219 

to  whom  power  of  leasing 
extends  ii.  313 

DOWER, 

limitation  to  bar  dower, 
the  objects  of  it  *—  233 

whether  it  may  be  creat- 
cil  under  the  old  power 
of  sale 

whether  a  purchaser  can 
require  the  concurrence 
of  the  trustee  to  bar 
dower  under  the  usual 
limitation 

attached  upon  vested  fee 
in  default  of  appoint- 
ment, is  defeated  by  an 
appointment 

release  of,  how  far  a  valua- 
ble consideration  ii.  232 

law  of,  how  altered  by 
statute  236.  ii.  313 

See  Jointuring,  Power  of. 
DRUNKENNESS, 

may  avoid  a  deed,  where 

ii.  178 


295 


235 


231 


572 


INDEX. 


DURESS, 

avoids  a  deed  ibid. 

EASExMENTS. 

demise  of  under  power   ii.  328 
ELDER  CHILD, 

deemed  a  younger  child, 
where  ii.  195.  269 

ELECTION, 

the  princi{)le  of  it  ii.  144 

requires    lorfeiturc    to   the 
disa[)|)ointed  devisee,  and 
not  compensation  ii.  145 

enforced  against  heir  talc- 
ing by  descent  ii.  146 

whether  where  the  will  is 
revoked,  qii.  ii.  147 

disappoint-ed  devisee  enti- 
tled to  satisfaction  pro 
tanto  ibid. 

there  must  be   two  funds 

ii.  148 

the  intention  cannot  be  col- 
lected dehors  ii.  149 

but  parol  evidence  is  ad- 
mitted, where  ibid. 

not  enforced  where  the 
donor  has  not  ability  to 
devise  ii.  150 

or  the  will  being  of  real 
estate  is  not  well  exe- 
cuted ii.  151 

at  what  time  the  election 
is  compelled  ii.  154 

where  the  party  refuses 
the  gift  it  goes  to  the 
disa{)pointed  devisees  ii.  155 

the  etlect  of  an  election      ibid. 

donee  may  elect  by  which 
of  several  modes  to  exe- 
cute a  power  275 

ENROLMENT. 

if  required  by  the  power, 
the  aj)pointment  must 
be  enrolled  252 

and  in  the  donee's  life- 
time 3 14 

so  if  required   by  the   do- 
nee .         439 
See   Bargain  and  Sale. 


EQUITY, 

will  restrain  trustees  from 
executing  a  contract  for 
sale  under  a  power, 
where  ii.   122 

will  rectify  a  mistake  in  a 
settlement  ii.  127 

will  allow  trustee  of  pow- 
er to  exercise  it  after  bill 
filed,  semb.  ii.  173 

does  not  exercise  a  discre- 
tionary power  ii.  175 

but     if    no     appointment, 

divides  equally  ibid. 

sets  aside  appoiulments  on 
equitable  grounds,  where 

ii.  181 

trustee  appointed  by  Court, 
not  entitled  to  power  in 
original  trustees  152 

See       Contract.        Cre'Jit- 
on.      Defective    Execu- 
tion.     Estates.      Fraud. 
ESCROW, 

a[)pointment  mny  be  deli- 
vered as  an  440 
ESTATE  IN  FEE, 

where  it  may  be  created 
under  a  power  480.  518 

where  it  cannot  be  created 
in  trustees  under  a  pow- 
er ii.  82 

where  it  must  be  appoint- 
ed 494 

limitation  as  A.  shall  ap- 
point generally,  if  creat- 
ed by  will,  a  fee  120 

where  trustees  for  sale 
have  the  legal  fee,  and 
not  a  power  1218 

actually  a[)pointed  cannot 
be  corrected  at  law  by 
the  power  ii.  82 

See  Limitations. 
ESTATE  TAIL, 

where  it  may  be  created 
under  a  power  482.  483.  494 

what  devise  under  a  pow- 
er gives  an  estate  tail 

535,  ii.  56 


INDEX. 


573 


ESTATE  TAIL,— (Continued.) 
where    two    estates   coal- 
esce, although  the  latter 
is  void  ii.  78 

ESTATE  FOR  LIFE, 
where  it  makes    the    gift 
over  a  power  or  an  in- 
terest 120 
where  a  power  authorizes 

a  life  estate  only  481 

what  limitation  in  a  deed 
under  a  power  amounts 
to  an  estate  for  life  only  532 


200 

476 
477 


517 


485 


ESTATES, 

must  be  taken  with  all 
their  incidents 

what  estates  may  be  cre- 
ated under  powers 

a  fee  where 

a,  power  to  charge  will  not 
enable  the  limitation  of 
a  fee  as  a  security 

an  unlimited  power  to 
charge  will  in  equity 
authorize  a  gift  of  the 
fee 

power  to  give  the  estates 
enables  in  equity  a  gift 
to  sell, and  pay  the  money  487 

an  equitable  estate  may 
be  limited,  where  ibid. 

in  what  cases  a  rent- 
charge  may  be  limited 

wher*e  the  rent  is  well 
charged 

power  to  appoint  an  estate 
for  lives  does  not  au- 
thorize one  for  years  de- 
termina!)le  on  lives 

in  what  cases  a  less  or  dif- 
ferent  interest   can    be 
granted 
estate  tail 
chattel  interests 

where  a  term  absolute;  may 
be  created  497 

where  a  qualified  estate 
cannot  be  granted  498 


490 

518 

491 


494, 
495 

49G 


I      estate  in  reversion  under  a 
power  to  create  an  estate 
in     possession    is    void 

ibid.  ii.  342 
I      what  interests  may  be  cre- 
!  ated   under  a  power  to 

appoint  to  children        ii.  272 
to  a  daughter  for  her  sepa- 
rate use  ii  274 
whether  to  the  husband  of 
a  daughter  during  their 
joint  lives                       ii.  275 
'      what   conditions    may    be 
'          annexed   to  the   execu- 
tion of  a  power  439 
the  effect  of  an  excessive 
I          execution              •            ii.  56 
See  Defective  Execu- 
tion.   Excessive  Ex- 
ecution.         Limita- 
tions.    Power. 

EVIDENCE, 

of  usual  letting  ii.  328 

See   Parol  Evidence. 
EXCESSIVE    EXECUTION, 
1.  the  effect   of  it   where 
there  is  an  excess  in  the 

objects  : 
under  an  appointment 
.  to  a  child,  capable,  for 
life,  remainder  to  his 
children,  incapable,  in 
tail,  the  parent  takes, 
an  estate  tail  ii.  56 

but  not  unless  that 
construction   will 
meet    the    testa- 
tor's intention      ii.  60 
and  the   doctrine  is 

confined  to  wills  ii.  61 
and  to  real  estate     ibid, 
where     void     remainders 
are   given,  and  the  doc- 
trine of  cy    pres  cannot 
be  appHed,  the    remain- 
ders only  are  void  ii.  62 
effect  of  an  indefinite  gift 
to  persons,  some  objects, 
others  not  ii.  63 


574 


INDEX. 


EXCESSIVE        EXECU- 
TION,—(  Cow^mMW.) 
gift  einbracinj^  objects  not 
within  the  line  of  perpe- 
tuity void  as  to  all  ii.  65 
gift   to    persons,  some  ob- 
jects, others  not,  equally, 
or  in   gross    sums,  good 
pro  tanto  ii.  G8 
legacies  to  persons,  not  ob- 
jects, fall    into    residue, 
where  ii.  14 
void  limitation  prevents  a 
good    limitation    over 
from  taking  effect         ii.  67 
unless   given   on  a  con- 
tingency,, with  a  dou- 
ble   aspect,    and    the 
limitation  to  the  stran- 
gers fails                ii.  68.  71 
or  a  void  power  be  limit- 
ed to  appoint  the  fund 
amongst   the    objects, 
and  it  is  given  to  them 
in  default  of  appoint- 
ment ii.  72 
or   the    remainder   over 
.after  a  void  life-estate 
be  to  an  object  ibid, 
where    the    first   gift  is 
absolute,    the    limita- 
tion to  others  is  bad  ii.  73 
2.   the  effect    of  it    where 
there  is  an  excess  in  the 

quantity  of  interest: 
good    pro    tanto    where 
the   excess   is   distin- 
guishable ii.  75.  81 
lease      exceeding      the 
term   authorized  good 
pro  tanto  in  etpiity      ii.  75 
but  where  a  distinct  lim- 
itation is  added,  that 
only  will  be  void         ii.  76 
unless   the   limitations,  al- 
though    several,    make 
but  one  estate  in  law    ii.  78 
money  charged  exceeding 
the  sum  authorized  good 
in  equity  pro  tanto  ibid. 


86 


where  too  much   property 
included  etpiity  may  re- 
lieve, where  ii.  129 
interest  charged  incorrect- 
ly, mistake  corrected      ii.  78 
3.   the    effect  of  it  where 
conditions     are      an- 
nexed, not  authorized 
by  the  ])ower : 
the    condition    only    is 

void  ii.  84 

valid  appointments  will 
be  sustained,  although 
confounded  in  the 
same  instruments 

with  other  objects       ii.  87 
where  the  gift  and  con- 
dition cannot  be  sepa- 
rated ii 
See          Jointuring, 
poioer  of.     Lease, 
jjower  to. 
EXCHANGE.     See    Parti- 
tion.    Sale  and   'Exchanpe. 
EXCLUSIVE    APPOINT- 
xMENT, 
where  authorized 
where  not  authorized 

See  Illusory  Appointment 
EXECUTION    OF    POW- 
ERS, 
how  to  be  executed  so  as 

to  vest  the  legal  estate 
whether   the   legal    estate 
will  vest  in  releases  to 
uses   by  a  direction  *to 
convey 
how  to  be  executed  where 
a  man  has  both  a  power 
and  an  interest 
may  be  executed  by  a  note 
in  writing  where  no  par- 
ticular instrument  is  re- 
quired 
all   the    circumstances    re- 
quired must  be  attended 
to 
power  to  tenant  for  life  to 
a|)point  by  will,  how  he 
may  sell  the  estate 


537 
538 


229 


230 


232 


247 


250 


261 


INDEX. 


575 


EXECUTION    OF    POW- 
ERS,— (  Continued.') 

where  a  ])ower  must  be 
executed  by  will,  and 
where  by  deed  255.  258 

power  of  revocation  and 
ai)pointment  may  be 
executed  by  the  same 
deed  '  243 

power  may  be  executed  by 
several  instruments  27  0 

power  of  revocation  not 
executed  by  a  re-con- 
veyance to  the  settlor       366 

power  of  a)){)oiiitmeui  or 
revocation  executed 
by  a  general  disposi- 
tion where  the  donee 
has  no  estate  357 

but  there  must  be  a  re- 
ference to  the  fund       367 
even  where  the   precise 
sum    is     given,    and 
there  is  no  other  fund  371 

what  amounts  to  a  speci- 
fic gift  373 

where  a  disposition  operat- 
ing as  an  a|)pointment, 
shall  execute  several 
powers  388 

what  amounts  to  an  exe- 
cution where  there  is 
both  a  power  and  an  in- 
terest 412.  415 

an  instrument  shall  not 
0})erate  under  a  power 
contrary  to  the  intention  421 

power  may  be  executed 
conditionally  439 

power  of  revocation  may 
be  reserved  440 

the    effect    of  the    execu- 
tion ii.  30 
overreaches   all   the  es- 
tates in  the  settlement   ibid. 

how  estates  created  under 
different  powers  take 
effect  ii.  43 

where  void  at  law  ii.  176 

in  equity  ii.  181 


See  Attorney,  Letter  of. 
Bargain  and  Sale, 
Bond.  Conditions. 

Defective  Execution. 
Estates.  Excessive  Ex- 
ecution. Fine.  Fraud. 
Judgment.  Lease  and 
Release.  Lease,  Poiu- 
er  of  Revocation, 
Power  of.  Solemni- 
ties. Tender.  Time. 
Will. 

EXECUTORS 

take  a  I  ovver  to  sell,  where   129 
of   executor    where     they 

take  a  power  147 

although  not  named,  if 
the  money  is  to  be 
distrU)uted  by  them  134 
contra  where  the  money 
is  not  to  be  distribut- 
ed by  them  139 
w^hcre    the    executors    of 

executors  can  sell  150 

if  any  refuse  the  trust,  the 

others  may  sell  142 

may  sell  lo  themselves       ibid, 
a  power  to   sell    survives, 

where  1^4 

may  be  special  occupants  v 
of     corporeal      here- 
ditaments 234,  n. 
contra,     of    incorporeal 
hereditaments  ibid. 
appointees,  where  they  are 

trustees  536 

where  they  take  as  desig- 
nated distinct  from  their 
testator  ii,  13 

of  an  object  of  a  power 
cannot  be  appointed  to 

ii.  260 
See  Limitations. 

EXTINGUISHMENT, 

of  powers  appendant  56 

in  gross  85 

FAMILY, 

the  extent  of  the  word    ii.  240 


576 


INDEX. 


FATHER  AND    CHILD, 
appointment  to  child    not 
wanting  its  portion,  for 
his    own    benefit,    void 

ii.  194 
release  of  power  by  father 
to  entitle  him  to  deceas- 
ed child's  interest,  oper- 
ation of  102 
lienefit  from  child  to  father 
valid    upon  a  re^settle- 
ment                                ii.  193 
effect  of  advancement     ii.  209 
appointment  to  a  child  up- 
on a  bargain,  void  ii.  184.  192 
a  discretionary  power  to  a 
parent    not     controlled, 
unless  there  be  fraud  ii.  173 
fraudulent  appointment  for 
consideration                 ii.   187 
FEE.      See  Estate  in  Fee 
FEME  COVERT 

with  a  power  by  will  and 
the  fee  can  sell  with  her 
husband  79 

may  now  release  powers 

by  deed  104 

is   considered  a  feme  sole 
as  to  property   settled 
to   her   separate    use 
y  202.  206 

such   trusts   are    valid : 
how  far  they  operate    203 
what  amounts   to   an   un- 
alienable   trust  in  her 
favour  200.  206 

how  far  such  a  trust  is 
legal  202 

her  separate  property  not 
liable  to  answer  general 
demands  on  her  206  i 

her  consent  in  court  to  an  | 

appointment  not  neces-  j 

sary  210 

may  execute  powers  over  I 

real  estate  181 

although   reserved  over 
her  own  estate  by  an  ' 

agreement  upon  mar-  | 

riase  185' 


her  husband's  concurrence 

not  necessary  191 

what  amounts  to  an  exe- 
cution of  a  p  >wer  bv 
her  390.398.418 

bond  and  warrant  of  at- 
torney, qu.  408 
effect  of  her  contract,  hav- 
ing a  power             206,  ii.  96 
her   will   revoked  by  mar- 
riage, where  190 
now  regulated  by  1  Vict. 

ibid, 
her   will  not  revoked    by 
void     appointment     by 
deed  li.  1 1 

what  amounts  to  an  equit- 
able execution  of  her 
power  408 

where  power  confined   to 

coverture  333 

her  will  of  personalty  must 
be  proved  as  a  will,  and 
also  as  an  appointment 

ii.  18 
may   retain   her    property 
against     her     husl>and, 
where  he  does  not  per- 
form his  contract  ii.  121 
where  deemed  unprovided 

for  ii.  Ill 

appointment  to  her  for  her 

separate  use  valid         ii.  275 
where     she    may    renew 

leases  by  statute       ii.  314 
her    other     powers    by 
statute     .  '    226 

See  Attorney.  Baro7i 
and  Feme.     Defec- 
tive Execution.  Exe- 
cution    of    Powers. 
Jointuring,  Foiver  of. 
FEOFFMENT, 

destroys  a  power  93 

but   if  of    part   of    the 
land,  only  partially         93 
acceptance  of  does  not  de- 
stroy a  power  55.  94 
may  execute  a  power  247 
See  Fine. 


INDEX. 


57i 


FINE, 

destroys  power  relating  to 
the  land 

is  merely  void,  or  operates 
as  a  further  assurance, 
where, 

accompanied  by  a  deed, 
operates  as  the  execu- 
tion  of  a  power,  where. 


I  FRAUDULENT  CONVEY- 
ANCE, 
93  :      an   appointment  is  within 

I  21  Eliz.  ii.  19 

I  FRIENDS, 
94 1      gift  to   friends    and    rela- 

I  tions  ii.  238 

; FURTHER  ASSURANCE. 

I      See  Fine. 


79.  94  •  FUTURO,  LEASE  IN, 


99 


104 
431 


by  tenant  for  life,  with  a 
power   to  appoint  to  his 
children,  the  effect  of  it 
effect  of  deed  under  Abo- 
lition Act  in  barring  pow- 
ers 103, 
revokes  a  prior  will 
See  Recovery 
FINES, 
where  they  cannot  be  taken 

on  leases  ii.  387,  390 

although  prohibited,  exist- 
ing lease  may  be  renew- 
ed at  increased  rent      ii.  396 
FORFEITURE, 

of  power,  by  treason,  &c.     217 
See  Feoffment.     Fine. 
Recovery. 
FRAUD 

may   enable   equity  to   re- 
lieve against  a  non  exe- 
cution, ii.  MO,  157 
what   is  a  fraudulent   exe- 
cution at  law  ii 
in  equity                         ii 
person   taking  with  notice 
of  a  prior  equitable  ap- 
pointment bound  by  itii.  191 
remainder-man  lying  by  during 
expenditure,  bound      li.  121 
by  a  husband's  preventing 
his  wife   making  an  ap- 
pointment,             ii.  140,  141 
fraudulent     execution    of 
jointuring  power       ii. 
See  Father  and    Child. 
Illusory    Appointment. 
Jointuring,   Power    of. 
Time.     Trustee. 


179 
18] 


302 


3G1 

363 
36o 


Vol.  n. 


the  meaning  of  the  term  ii.  313. 

359 
what  is  a  lease  in  futuro.     ibid, 
depends  for  its  validity  on 
the  time   of    its    execu- 
tion ii. 
contract  to  grant  a  lease  in 
futuro,   valid,   if    tenant 
for  life  live  beyond   the 
period                                ii. 
not  supported,  because  do- 
nor so  granted                ii. 
See  Reversion. 
GRANDCHILD 
not  an  object  under  a  pow- 
er to  appoint  to  children 

ii.  253 
where  a  power  under  gene- 
ral words  embraces  grand- 
children j> 
an   appointment    may    be^ 
made  to  a  grandchild  with 
the  consent  of  the   child 
on  his  marriage               ii. 
where   grandchildren  take 
by  substitution.              ii. 
See  Defective  Execution 
GENERAL  POWER, 
where  it  carries  the  fee  or 

absolute  interest 
what  estates  may  be  creat- 
ed under  it 
within  the  exception  in  the 

old  annuity-act 
where  cut  down  to  a  par- 
ticular purpose 
GROSS,  POWERS  IN 
defined 

how  suspended 
how  extinguished 


259 

260 
279 


120 

471 

472 

530 

40 
55 

82 


49 


578 


INDEX. 


GROSS,   POAYERS    IN— (con- 
tinurd.) 

how  merged  105 

may  be  exercised  after  llie 
douce  has  departed  with 
his  estate  85 

may  be  released  89 

to  arise  on  a  future  event, 

may  be  defeasanced  90 

whether  tlioy   can  be  re- 
leased in  ]»art,  qu  ibid. 
GREAT  NEPHEWS 
not  within  a  jjower  to  ap- 
point to  nciihcws           li.  293 
but  may  be  appointed  to  on 
marringe  of  the  nephew 
'with  his  consent  ibid. 
HEIRS  OF  THE  BODY, 

power  to  appoint  to  ii.  265 

HEIR.   See  JDescent.  Election. 
HE  RIOTS 

need  not  be  reserved  under 
a  power  requiring  the 
ancient  rent,  ii.  400 

HOTCHPOT  ii.  220 

HUSBAND.    See  Baron  and 

Feme.     Feme  Covert. 
ILLUSORY   APPOINTMENT, 
now  valid  by  statute  543 

under  old  law  581 

what  amounted  to  an  ibid, 

a    share    descending   was 

sufficient  580 

where    only  the   layt    ap- 
pointment was  bad  ibid, 
might  be  justified   by   cir- 
cumstances ibid, 
as     advancement    upon 
marriage  ibid, 
whether  the  provision 
must    have    moved 
from  the  donee  587 
or  by  consent  of  the  [)ar- 
ties                                    588 
the   fund   was  distributed 
equally  where  the    ap- 
pointn)ent  was  illusory     589 
See  Reversion. 
IMPLICATION, 

where  a  donee  is  implied     134  I 


gift  by,  in   default  of  ap- 
pointment ii.  162 
gift  by,  not  where  power 

is  to  select  one  object  ii.  164 
of    gift,     from    limitation 

over  ii.  167 

gift  by,  confined  to  those 

within  the  power  ibid. 

gift  over  in  default  of  ap- 
pointment, its  effect         ibid. 
IMPROVEMENTS, 

remainder-man  bound  by 
void  lease  by  permitting 
improvements         ii  121.  310 
wlieilier  they  avoid  a  lease 
requiring  best  rent        ii,  387 
bee  Rent. 
INCUMBRANCES, 

the  effect  of  a  grant  by  ten- 
ant for  life  npou  his 
powers  48 

INDORSEMENT 

of  a  power  before  execu- 
tion of  the  deed  good        158 
where    appointment  is  to 
be  executed  by  271 

INFANT, 

cannot   now  execute  pow- 
ers 214 
the  old  law             •            ii.  537 
his  powers,  by  statute  226- 
ii.  314 
heir,  tender  to  him  valid       319 
INSOLVENT  DEBTORS. 

See  Debtor. 
INSTRUMENT.     See  WiU. 
INTENTION, 

that  interest   should   pass, 

sufficient  419.423. 

power  not   executed   con- 
trary to  421.424.438 
INTEREST, 

where  it  may  be  appointed  516 
where  it  can  be  appointed 
on  portions  ii.  283 

See  Charge. 
INTERLINEATION 

of  a  power  good,  where         158 
ISSUE, 
the  extent  of  the  word  475 


INDEX. 


579 


lSSVE,—(.Co7iti7iue(L) 
where  tliey  take  with  their 
parents  ii.  205 

See  Heirs  of  the  Body. 
JOINT  APPOINTMENT' 
where  a  power  of  revoca- 
tion to  the  survivor  may 
be  reserved  442 

where  it   prevents  an   ap- 
pointment by  the   survi- 
vor ii.  201 
JOINT    TENANTS.      See 
Tenants  in  Common. 
JOINTURING,  POWER  OF, 
where  the  jointure   cannot 

be  for  years  491  ii.  291 

what  is   a  release  of  the 

power  ii.  290 

defective  execution  where 

arded.  ii.  106.  119 

contract  where  aided        ii.  118 
when  in     possession,   if 
event  happen,  bound  by 
prior  contract  ii.  119 

where  contract  deemed  to 

be  under  power  ii.  293 

executed  for  the  husband's 

own  benefit,  void  ii.  184.  302 
may  be   re[)eatedly   exer- 
cised 4G0,  ii.  289 
where   it     may    be    made 

clear  of  taxes  ii.  294 

at  what  time  the  value  of 

the  lands  is  to  be  taken  ii.  296 
wife  entitled  to  a  remedy 
against  the  husband's 
assets  under  his  cove- 
nant for  any  deficien- 
cy in  her  jointure  ii.  298 
unless  the  parties  meant 
to  execute  tlie  power, 
and  the  excess  was  a 
mistake  ibiil. 

where  entitled  to  relief 
for  deficiency  against 
remainder  man  ii.  120 

the   effect  of  a  power  to 
jointure    according   to 
the  wife's  fortune      ii.  301 
a  nominal  portion  not 

sufficient  ii.  185.  301 


107 
185 
299 


nor  a  settlement  to  the 
separate  use  of  the 
wife  ii.  301 

but  a  fair  settlement  of 
the  wife's  fortune  will 
be  supported  ibid, 

the  portion   must  be  as- 
certained  in  the  hus- 
band's life-time  ii.  302 
jointure  takes  effect  next  after 
husband's  estate  ii.  38 
prevails  over  portions         ii.  40 
general  covenant  does  not 
bind  jointuring  power  ii. 
jointure  good  pro  tanto,  al- 
though fraud                   ii., 
where  jointure  is  in  bar  of 
dower                                ii. 
where  jointure  must  be  be- 
fore marriage  ibid. 
JUDGMENT 

in  effect  an  execution  of  a 

power,  where  357,  ii.  33 

defeated   by   an    appoint- 
ment, where  ii.  33 
KIN,  NEXT  OF, 

the  extent  of  the  words    ii.  240 
KING.     See  Croivn. 
LAPSE, 

where  power  lapses  •  J06 

LAPSED  DEVISES      ii.  12,  13 
LEASE  FOR  LIVES, 

where  tu  be  appointed  491 

where  to  be  for  years  ibid, 

for  fines,  under  a  power  to 
raise  money 
LEASE  FOR  YEARS, 
suspends  a  power  append- 
ant, where 
but  not  a  [)ower  in  gross 
where  it  must  depend  upon 
lives  491, 

See  Cestui  que  Trust.    Ex- 
cessive Execution.    Lease, 
Power  to.     Renewal. 
LEASE  UNDER  POWER, 
overreaches  all  estates       ii.  36 
not  affected   by  other  ap- 
pointments ii.  42 
how   it  operates    on   pre- 
vious appointments         ii,  44 


520 


48 
55 

493 


580 


INDEX. 


LEASE,  POWER  TO, 
cannot    be    exercised     by 
tenant  for  life  after  be 
be   bas  sold    his  Ufe 
estate  56 

unless  by  way  of  mort- 
gage, qii.  67,  68 
and  the  right  is  reserved     68 
where  it  nuthorizcsa  lease 
without  any  rent  for  any 
term                              522,  523 
in  what  instruments  it  may 

be  reserved  159 

fo  whom   the     power   ex- 
tends ii.  313 
lease   by   tenant    for  Jife, 
with  a  power  for  a  term 
certain,  operates   as   an 
execution  of  the  power     418 
but  not  where  the  power 
is  badly  executed,  and 
the   effect  would  de- 
stroy a  valid  lease         423 
may   be    executed    toties 

quoties  ii.  312 

an  agreement  to  execute  a 
lease,  will  be  enforced 
or  not,  where,  ii.  121 

a  defect  in  an  execution  of, 

will  be  aided,  where    ii.   132 
where  authorized  by  arti- 
cles, ii.  313 
the  effect  of  an  excess  in 
the    execution    of    the 

ii.  75 
of    the 

power  ii.  305 

acceptance  of  rent  under  a 
void  lease  will  not  set 
it  up  ii.  308 

but  may  create  a  tenan- 
cy ii.  309 
what   amounts   to   a  con- 
firmation of  a  void  lease 

ii.  310 
where  lease  determines  on 

non-payment  of  rent     ii.  312  | 

a  lease  may  be  granted  in  [ 

trust  for  the  donee  ibid.  | 

what  may  be  demised     ii.  3171 


power 
the     construction 


under  a  power   (o  lease 

lands  usually  letten  ibid, 
by  whom   the  lettings 

must  have  been    ii.  319 
by  what  instruments  ii.  320 
under  a  power  to   lease 
at  the  rent  then  re- 
served, or  at  the  an- 
cient rents,  &c.  ibid, 
whether  any  j)art  not 
formerly  let,  is  with- 
in the  ])0Vi7er         ii.  321 
where    mines   are   com- 
prised in  the  power  ii.  328 
farm  may  be  divided         ii.  410 
what  term  may  be  granted 

492.  494,  ii.  330 
where  power  is  unlimit- 
ed ii.  338.  355 
general  power  where  the 
estate  is  in  hand,  au- 
thorizes only  lease 
in  possession  ii. 
even  where  the  estate 
is  already  in  lease, 
if  the   j)ower  is  to 
lease  in  possession  ii. 
general  power  whether 
it  authorizes  a  lease  in 
reversion    where    the 
estate    is    already    in 
lease                           ii. 
power  to  lease  not  ex- 
ceeding a  given  num- 
lier  of  years  from  the 
time  of  tnaking,  alease 
in  reversion    may    be 
granted       ii.  34b.  351.  35G 
leases  both  in  possession 
and   reversion  cannot 
be  granted  at  the  same 
time  though  both  au- 
thorized                       ii.  350 
nor  rei)eated  reversiona- 
ry leases                      ii.  359 
where  a  surrender  of  pri- 
or lease  will  be  pre- 
sumed                        ii.  363 
concurrent  leases  where 
valid                            ii.  371 


3k;  ^ 


350 


.310  ^ 


A 


INDEX. 


681 


LEASE,    rOWER     TO— {con- 
tinued. ) 

a  lease  may  be  granted 
with  a  power  of  re- 
vocation to  lessor  ii.  331 
whether  with  such  a 
power  to  lessee,  qii. 

ii.  332 
under  powers  to  lease  for 

lives  ii.  339 

where  it   may  be  re- 
newable forever    ii.  33S 
where  it  may  be  for 
lives  and  years      il.  340 
daring  the  life  of  the  sur- 
vivor of  the  lives       ii.  340 
to  one  for  all  the  lives,  or 

to  all  the  persons         ibid, 
the  lives  must  be  concur- 
rent ibid, 
not  for  the  life  of  one  to 
commence    from    the 
death  of  the  others       ibid, 
may  be  for  fewer  lives  ii.  34 1 
_»  what  rent  must  be  reserved 

ii.  385 
what  conditions  and  cove- 
nants must  be  observ- 
ed ii.  431 
where  the   power  is  si- 
lent ii.  443 
a  power  of  re-entry  requir- 
ed may  be  qualified  ii.  432 
See    Attonieij.      Debtor.  \ 
Concurrent        Leases.          ] 
Counterpart.         Cove-          i 
nant.     Defective   Exe- 
cution.        Easements.          \ 
Futuro.  Improvements.          I 
Lunatics.    Mines.   Re-          j 
entry.     Rent.     Rever- 
sion.     Waste. 


LEASEHOLD  ESTATE, 
where  a  bequest  of  it,  exe- 
cutes a  power 
LEASE  AND   RELEASE, 
a    consideration    requisite 
lo  the  lease,  not  to  the 
release 


380 


5 
49 


conveyance  by,  does  not 
destroy  a  power  in  gross     86 

in  execution  of  a  power 
how  it  operates  218 

LEGACIES, 

under  a  power  over  person- 
alty lapse,  and  fall  into 
residue  ii.  13 

where   they  do  not  fail  al- 
though power  destroyed  431 
duty  on  260,  n. 

LESSEE 

under  a  powder  where  enti- 
tled to  have  a  defect  aid- 
ed ii.  131 
a  purchaser  within  27  Bliz. 

ii.  228 
LETTERS, 

promise  by  to  ext^cute  a 
power,  equity  may  re- 
Heve  ii.  115 

LIMITATIONS      IN     IN- 
STRUMENTS     CRE- 
ATING POWERS, 
as  A.  shall  appoint,  and  to 

him  in  fee,  valid  105 

to  A.  in  fee,  and  as  he  shall 

appoint,  valid  110 

as  A.  shall  appoint  gene- 
rally, if  created  by  will, 
a  fee  121,  125 

to  the  discretion  of  A.  in 

fee  126 

to  A.  for  life,  with  power  to 
give  the  fee  to  partic- 
ular objects,  an  estate 
for  life  and  fee  ibid, 

so  although  an  estate  for 
life  is  not  given,  sem- 
ble  ibid, 

so  although  there  is  an 
estate  for  life,  and  the 
power  is  general  123 

power  of  api)ointing  the 
fee  after  the  death  of  the 
donee,  not  affected  by  a 
limitation  previously  de- 
termining the  life-estate   129 


582 


INDEX. 


LIMITATIONS  IN  IN- 
STRUMENTS CRE- 
ATING     POWERS—         : 

{continued.)  I 

distinction  between  a  de-  j 

vise  of  lands  to  execu-  | 

tors   1o  be  sold,  and  a 
devise  that  executors  I 

shall  sell  the  land     •      130  I 
whether  a  devise  of  lands  i 

to  be  sold  by  executors 
will  pass  the  fee  129  I 

"  unto  and  to  the  use"  of         j 
the  same  person,  the  ef-  j 

feet  of  it  1G2| 

in  a  will,  to   trustees   and 
their  heirs  generally,  will 
give  them  the  fee,  where   176 
power  to  a})point  to  issue, 
generally,  valid  475 

to    children,  how  the 
fund  may  be  settled 

ii.  272  j 
in  defoult  of  appointment  , 

take  effect  in  posses-  ' 

sion  where  the  power  ! 

is  void  ii.  1 

are  vested,  subject  to  be 
divested  ii.  2 

where  a  power  given  to  the 
survivor  may  be  exercis- 
ed by  a  continuing  trus- 
tee MO 
as  the  survivor  of  two  shall 
appoint,  cannot  be  exe- 
cuted by  a  joint  appoint- 
ment M2 
10  three,   and   their  heirs, 
cannot  be  exercised  by 
two  surviving  147 
of  appointing  new  trustees, 
in  classes,  how  constru- 
ed                                    ii.  504 
to  bar  dower,  the  objects  of 

them  233 

to  the  use  of  a  man's  will, 

the  effect  of  it  259 

what  is  a  mere  power,  and 
what  a  power  in  the  na- 
ture of  a  trust  ii.  158 


where  a  gift  in  default  of 

ap])ointmcnt  is  implied  ii.  IGl 
power   to  will    away   any 
part  or  proportion  gives 
a  power  to  dispoie  of  the 
whole  52() 

power  to  appoint  any  part 
of  the  lands  to  one  for 
life,  the  donee  has  only 
to  s[)ecify  the  land  ii.  79 

limitation  in  default  of  ap- 
pointment may  in  some 
instances  control  a  gen- 
eral power  530 
the    effect    of    limitations 
over   in    default   of   ap- 
pointment                  ii.  2.  207 
See    Conditional  Power. 
Estates.          Exclusive 
Power.     Feme  Covert. 
Blortsase. 
LIMITATIONS      IN      IN- 
STRUMENTS   EXE- 
CUTING     POWERS, 
take  effect  as  if  created  by 
the  original   instrument 

ii.  22.  30 
appointment  by  will  to  heir 
at  law  by  will,  he  takes 
by  descent  where  ii    17 

appointment  to  the  heirs  of 
tenant  for  life,  under 
the  deed  creating  the 
power,  the  estates  co- 
alesce ii.  24 
but  they  must  be  of  the 
same  quality  532 
by   deed,  technical  words 

are  essential  ibid, 

exception  as  to  words  of 
modification  533 

by  will,  technical  words  are 

not  necessary  ibid, 

where  gifts  to  strangers  in 
derogation, of  first  estate 
are  void  ii.  258 

gift  in  remainder  to  an  ob- 
ject after  void  gift  to 
stranger  for  life,  where 
valid  ii.  72 


INDEX. 


583 


See  Appointments.     Es-         ' 
tales.     Excessive  Exe- 
cution.     Lease.      Sale  \ 
and  Exchange.  i 
LIVES,  LEASE  "for.  , 
See     Lease    for    Lives. 
Poiver  to  Lease.      Re-  \ 
version. 
LOSS 

must  be  borne  by  the  resi- 
due where  a  particular 
sum  is  authorized  to  be 
appointed  ii.  20 

LOST  INSTRUMENT, 
presumption   of  nature  of 
power  in  it  329 

LUNACY, 

where  it  will  avoid  a  deed 

ii.  179 
operation  of  7  &  8  Vict. 

,    ii.  180 
LUNATICS, 

power  of  leasing  in,  may 
be  executed  by  the  com- 
mittee 226 
trustees     or      mortgagees, 

power  of  committee         ibid, 
[lowers   in    committees   to 
complete   lunatic's   con- 
tract ibid. 
MARK,     See  Signing. 
xMARKSMAN, 

executing  or  attesting  2"^3 

MARRIAGE, 

the  procuring  it  a  bad  con- 
sideration ii.    197 
is  a  good  consideration  for 

a  settlement  ii.  228 

to  whom  it  extends  ibid, 

settlement   after  marriage- 
is  voluntary  ii.  233 
although  a  parol  agree- 
ment be  made  before 
the  marriage,  semble 

ii.  228 
revokes    a   woman's    will, 
where  190 

See  Defective  Execution. 
Feme  Covert.  Grand- 
child. 


MERGER,      • 

power  to  one,  with  tlie 
fee  in  himself,  does  not 
merge  105 

])0wer  not  merged  by  the 
accession  of  the  fee, 
.semble  111,112 

MINES, 

nnder  a  power  to  lease,  re- 
quiring rent  to  be  reserv- 
ed, a  proportion  of  the 
prodnce  maybe  reserved 

ii  401 
lease  of  unopened  mines 
void  where  -power  re- 
quired lessee  not  to  be 
dispunishable  of  waste  ii.  328 
lease  of  ojiened  and  uno- 
pened mines,  at  a  pro- 
portion of  1  roduce,  good 
for  former,  though  latter 
badly  demisetl  li.  420 

See  Lease,  Power  to. 
MISTAKE, 

as  to  the  time  at  which  the 
interest   given    under   a 
power  ought  to  arise,  cor- 
rected in  equity  ii.  78 
in  settlement  corrected     ii  .-l?! 
See  Equity.    Jointuring, 
Poiver  of 
MOIETIES, 

power  over  one,  fee  in  the 
other,  effect  of  general 
dis()osition  383 

power  of  leasing  over  one, 
fee  in  the  other,  effect 
of  lease  at  one  rent      ii.  426 
MONEY     TO    BE    -LAID 
OUT  IN  LAND, 
where  a  power  over,  is  ex- 
ercised by  a  general  dis- 
position 377.  387 
MONEY   TO   ARISE    BY 
SALE  OF  LAND, 
where  a  jiower  over,  is  ex- 
ercised by  a  general  dis- 
position 387 
MORTGAGE, 

destroys    powers,    where 

47.  5G.  75 


584 


INDEX. 


52 


154 

343 
344 

513 


MORTGAGE,— (  Continued.) 
over-reaches  other  estates, 

where 
proviso  that  the  mortgagor 
sliall    receive    the  rents  j 

till   default    in   {)ayinent  j 

the  ellecl  of  it 
a  partial  execution  only  of 

a  power  in  equity 
where  a  full  execution 
where  it  may  be  made  un- 
der a  power  to  sell 
where  it  may  be  made  un- 
der a  power  afier  a  sale    514 
power   to,   to   what  it  ex- 
tends 515 
where  it    destroy    a   prior 
will                                      ii.  8 
See    Charge. 
MORTGAGEE, 

an  infant,  powers  by  stat- 
ute 226 
a  lunatic,  powers  of  com- 
mittees                               ibid. 
a  purchaser  within  27  Eliz. 

ii.  228 
See  Defective  Execution. 
MOST  RENT  ii.  401 

MOTHER,     ^ee  Father  and 

Child. 
NEPHEWS, 

power  to  appoint  to,  con- 
strued    the;    same  as    a 
power  to  appoint  to  chil- 
dren ii.  271 
See  Children,  Power  to 
apj)oint  to 
NON-EXECUTION 

is  not  in  general  aided     ii.   157 
unless  the  [)ower  is  in 
nature  of  a  trust         ii.   158 
See  Defective  Execution. 
Fraud. 
NOTE  IN  WRITING.   See 

Execution  of  Powers. 
NOTICE, 

required  must  be  given         253 
of  appointment  should  be 

given  to  trustees  244 

of  covenant  not  to  exercise 
power,  binding  ii.  194 


eflTect  notice  that  improper 
leases  have  been  grant- 
ed, ii.   195 
See  Fraud. 
OCCUPANTS.     See  Exec- 
utors. 
PARENT.     See  Father  and 

Child. 
PAROL  CONTRACT, 

where  aided  in  equi'y     ii.    121 
before  marriage  to  make  a 
settlement  ii.  229 

PAROL  EVIDENCE. 

See  E'ection.    Relations. 
Sati.faction. 
PARTIAL  EXECUTIONS, 
powers  may   be   executed 

partially  341 

a  mortgage  is  but  a  partial 

execution  in  equity  343 

unless  there  is  an  ulterior 

disposition  344 

partial        execution       not 
deemed    a   general  one 
by  the  introduction  of  an 
unnecessary  power  92 

PARTICEPS  CRIMINIS 

relieved,  where  ii.  18G.  190 

PAltTICULAR  POWER. 
what  estates  may  be  cre- 
ated under  it  474 
PARTITION, 
with  a  power,  where  it  re- 
vokes a  will               108,  ii.  6 
what  estates  it  overreach- 
es,                                     ii.    35 
power   to    make    partition 
does  not  authorize  a  sale 
or  exchange                    ii.  479 
power  of  sale  does  not  au- 
thorize a  partition             ibid, 
whether  a   power    of 

exchange  does,  qu.  ibid, 
but  this  may  be  done 
circuitously  under  a 
power  of  sale         ii.  482 
PAYABLE 

where   it  does   not   mean 

vested  ii.  208 

where  it  is  confined  to  un- 
appointed  portions        ii.  204 


INDEX. 


585 


PERJURY, 

stifling  a  prosecution  for,  a 
b;ul  consideration,  ii.   177 

PERPETUITY, 

power,  having  tliat  object, 
is  void  178 

power  of  sale  and  ex- 
change unlimited,  not 
void  179,  ii.  472 

power  to  appoint  to  any  is- 
sue not  voitl  ibid. 

general  power  of  appoint- 
ment authorizes  the  cre- 
ation of  a  similar  power 
in  another  237 

what  amounts  to,  in  an 
original  instrument  468 

instruments  executed 
under  powers  472 

gift  under  power  embrac- 
ing objects  not  wilhin 
the  line  of  [>erpetuity, 
void  as  to  all  ii.  65 

PORTIONS, 

payment  of,  suspended  by 
power  of  revocation         ii.  5; 

general    power   to  charge,  ] 

extends    to    the    whole  ! 

value  5'ii.  526' 

power  to   charge  reasona-  | 

ble,  how  construed  527 

what    estates    they   over-  j 

reach  ii.  40  ' 

are  suiiject   to    a  jointure  i 

appointed  ii.  38  | 

made  payable   by  ajjpoint-  j 

ment  before  wanted,  for 
fathers  own  bcnefil,  voiil 

ii.  194 

power  remains  though  por- 
tions have  vested  ii.  204  ! 

effect  of  advancement      ii.  2091 

effect  of  release  by  chikl    i.  217| 

whether  conditions  can  be 
annexed  to  appointment 

ii.  2801 

at  what  ages  portions  may 
be  appointed  ii.  281  ' 

where  [)ortions  sink   ii.  2S2,  283 

where     interest     can     be  I 

charged  ii.  283 1 


it  will  not  sink  ii.  284 

rate  appointed  or  allow- 
ed ibid. 

not  payable  against  join- 
tress ii.  285 

where  in  articles  a  clause 
of  survivorship  is  impli- 
ed ii.  286 

where  power  to  appoint  is 
authorized  by  articles   ii.  266 

POSSESSION,      LEASE. 

See  Lease,  Power  to. 
POWERS, 

defined  and  classed  1.  39 

when  susj)ended  47 

how  created  1 17.  153 

no  precise   form  of  words 

necessary  1 18,  244 

where  they  arecumulutive   119 
what  are   powers,  and   not 

estates  121 

what  are  powers  in  the  na- 
ture of  trusts  ii.  15S 
what  are  both  powers  and 
a  gift  by   implication  if 
no  appointment  ii.    162 
what  are   powers  and  not 

trusts  ii^  171 

no  solemnities  need  be  re*^"^ 
quired  to  their  execution   155 
although  to  be  executed 
by  will  ibid, 

in  what  instruments   they 

may  be  reserved        158.   162 
in  wills,  whether  they  o[)- 
eratc  under  the  statute. 

171.  239 
what  seisin  must  be  raised 

to  serve  them  175 

for  what  objects  they  may 

be  raised  177 

to  create  a  perpetuity  void  178 
reservation  of,  ileslroys  pri- 
or will,  where  ii.  7,  8 
nuiy  be  executed,  by  whom  IbO 
extend  to  whom  153 
extend  to  charge  what  lim- 
itations ii.  41.  220 
where  they  survive  140 


586 


INDEX. 


POWERS,— (  Conlinucd.) 

cannot  be  clele2:ated  213 

where  forfeited  217 

transferred  by  act  of  parlia- 
ment 223 
created  by  powers              237 
common   law,    how   to  be 

executed  238 

by  what  instruments  to  be 
executed  where  the  pow- 
er is  silent  247 
where  a  particular  instru- 
ment is  required  252 
distinct  .  powers     in    one 

clause  2G7 

where  general  powers  are 
restrained  to  particular 
objects  530 

where  they  limit   the  es- 
tate and    the   power  is 
only  to  select  the  land   ii.  79 
may  be  executed  by  more 
instruments  tlian  are  re-  i 

quired  275 1 

at  what  time  they  may  be  | 

executed  330 

where  they  authorize  a  re-  ! 

^       peated     execution,    and  I 

where  not  341  ! 

when  executed  by  a  gene- 
ral disposition  357 
distinction  between  gene- 
ral and  particular  powers  471 
where   there    is  only   one  i 
*         object  of  a  power  of  dis- 
trilnition,  it  is  at  an  end 

499.  502 
contra,  where  the  power 
extends  to  the  quanti- 
ty of  estate  501 
or  tiie  object  does   not 
take  in  default  of  ap- 
pointment                       502 
what  acts  they  authorize      512 
where  they  lapse  50G 
to  ap[)oint    estates  to   be 
bought,  may  be   exer- 
cised  over  estates  di- 
rected to  be  sold  513 
over        different        funds 


amongst  the  same  ob- 
jects, f)art  of  each  fund 
need  not  be  appointed  to 
each  515 

over  what    property  they 

extend  515.  525 

where    in    the    nature    of 

trusts  ii.  158 

how  long  they  endure      ii.  485 
See  Debtor.     Execution 
of  Powers.     Lunatics. 
Void      Power.        Trust, 
Passim. 
POWERS  AND  TRUSTS, 
where   a  power  is   in  the 
nature  of  a  trust  ii.  158 

PR^EMIUM  PUDICITLE  ii.  177 
PREROGATIVE.  See  Crown, 
PRESUMPTION 

of  nature  of  power  in  lost 

instrument  329 

of  surreuder  of  old  lease  ii.  3G3 
PRIORITIES 

of  estates  created  under 
powers  ii.  34.  43 

PRINTING.     See  Signing. 
PROBATE 

duty  249.  2G0,  n. 

an  appointment  of  person- 
alty 1)V  will,  subject  to  ii.  18 
PROTECTOR    OF     SETTLE- 
MENT, 
his  powers  not  controllable  328 
PROSTITUTION, 

bad  consideration  ii.  177 

PUBLICATION, 

if  required  to   be  attested 

must  be  303 

delivery  of  a  will  is  a  pub- 
lication 285.  304 
attestation  of  signature  not 
sufficient  30G 
PURCHASER, 

from  a  voluntary  appoin- 
tee preferred  to  creditors 
of  appointor,  ii.  28 

without  notice  will  prevail 
over   a    prior   defective 
appointment,  where     ii.  103. 
105 


INDEX. 


587 


PUR  CHASE  R,— (  Coyitinued. )      1 
cannot  protect  himself  iin-  1 

der    a    fraudulent     ap-  ' 

pointment    to     a    child, 
though  without  notice  ii.  104 
an    improper   bargain    l)e- 
tween  parent  and  child,  not 
presumed  against  him  ii.  192 
power   of    revocation    not  : 

exercised,  is  void  nsainst  ' 

him  ^       li.  222' 

whatever  be  the  form  of 

the  power  ibid, 

unless    the    power  is 

bona  fide  restrained  ' 

to  be  executed  with 
consent  of  strangers  ibid, 
although    the    power 
be  future  ii.  225 

or  be  previously  to 
the  sale  released  ibid, 
what    is    a   sufficient 
consideration  to 

avoid  the  power  ii.  227 
the    purchaser    must 
have  contracted  for 
the  real  interest    ii.  233 
not  bound  to  see  to  the  ap- 
plication of  purchase  mw- 
ney  where  it  is  to  be  ap- 
plied in  payment  of  the 
donee's  debts  535 

where  boinid  to  renew 
lenses  under  covenant 
of  tenant  for  life  ii.  367 

See    Creditors.      Defective 
Execution.  Doicer.  Fraud. 
Notice. 
PURCHASE      MOMEY.       See 

Purchaser. 
QUALIFIED  ESTATE, 

where  it  cannot  be  granted  498 
RASURE, 

where  it  avoids  a  deed    ii.  177 
REAL  ESTATE, 

where   a   devise    of,   exe- 
cutes a  power  376 
what  is  a  sufficient  descrip- 
tion of  it  396 
RE-ENTRY, 


power  of,  in  leases  under 

powers  ii.  316 

how  it  mav  be  qualified  ii.  432 
RE-EXECUTION, 

where   power  may  be  re- 
executed  355 
RECITAL, 

may  operate  as  the  reser- 
vation of  a  power  119 
may  amount  in   equity  to 
the  execution  of  a  power     45 
RE  COMMENDATION, 

wdiat  is,  and  not  a  trust    ii.  171 
RE- CONVEYANCE.     See 
Execution  of  roicers. 

RECOVERY, 

how   suffered   to   save  the 

powers  of  a  tenant  for  life  78 
wliere    it    operates   as    a 

confirmation  96 

where  it  defeats  a  power 

prior  to  the  estate-tail  ii.  569 
effect  of  deed  under  aboli- 
tion act  in  barring  pow- 
ers 103 
no  equity  against  protector 
of  settlement,  &c.          ii.*114 
See  Fine. 
REGISTRY  ACT, 

a|i[)ointnient  within  it         ii.  20 
RELATIONS, 

power  to  appoint  to,  wdiere 
it  authorizes  an   exclu- 
sive appointment       540,541 
bequests  to  relations  gov- 
erned  by  the   statute 
of  distributions  ii.  237 

so    to     near     relations, 

friends,  relations,  &:c.  ii.  238 
but  not   to  nearest  rela- 
tions ibid 
the  effect  of  a  bequest   to 

poor  relations  ibid 

parol    evidence   not  ad- 
missible to  ex[)lain  itii.  242 
to   whom  an  api)ointment 
may  be   made   under   a 
power  to  appoint   to  re- 
lations ii.  242 


588 


INDEX. 


IlELATIONS,(  Coutinucd.) 
in     what   v(;lations    the 
fund  vests  in   default 
of  ai)poiatnient  ii.  216 

RELEASE, 

what  power  may  be  released  89 
by   father    to   ])ro(nire   de- 
ceased child's  interest      101, 
102 
See  Purchasers. 
REMAINDERMAN, 

where  a  parol  coiilract  will 

not  hind  him  ii.  121 

penuilting;         expenditure 

bound  ibid, 

entitled  to  enforce  con- 
tract by  tenant  for  life 
to  execute  power  ii.  121 

effect  of  his  accepting  rent 

under  void  lease  ii.  308 

what  is  a  confirmation  by 
him  ii.  309 

See  Defective  Execu- 
tion, passim. 

RENEWAL  OF  LEASES, 
not  an  appointrient  36G 

covenant   to  renew  where   •       I 
a  fraud   upon  the  power 

ii.  122.397; 
wbere  it  does  not  affect 

the  lease  ii.  366  I 

where  it   binds    a  pur-  i 

chaser  ii.  367 

where  a  renewable   lease  I 

is  valid  ii.  338  ! 

existing  lease  may  be  re-  | 

newed  at  an  increased  I 

rent,  though  no  fine  can  j 

be  taken  ii.  396  ' 

RE  NT- CHARGE, 

where  it  may  be  api)ointed 

489.  517  j 
when  well  granted   under 

a  general  disposition         418 
where  it  must  be  confined 
to  part  of  the  estate  517 

RENT  UNDER  POWERS  OF 
LEASING, 
powers  to  lease,  rendering 
such  rent  as  the  donee 


ii. 

3«7 

t  be 

ii. 

395 

re- 

ii. 

396 

the 

ii. 

403 

sliall    think  fit,   he  may 
lease  without  rent  522 

the  acceptance  of  rent  un- 
der a  void  lease  will  not 
set  it  up  ii.  308 

whether  the    best  rent  is 
reserved,  must  be  decid- 
ed by  a  jury  ii.  386 
if  the    best  rent  is  reserv- 
ed, the  tenant    agreeing 
to  lay  out  money  in  irn- 
])rovement  is    not  mate- 
rial                                    ii.  387 
best  rent,  what  it  moans  ii  397 
fine  cannot  be  inken  if  pro- 
hibited 
highest  offer   need    not  be 

accepted 
same  rent  should    be 
served  for  the  term 
must  be  reserved    for 

whole  term 
may  be  reserved  for  time 

])ost  ii.  402 

whether    it     may    be     re- 
served before  the  day  ii.  4  06 
cannot    be  reserved    after 

the  day  ibid, 

rent  2^>'o  fata  valid,  wliere 

farm  divided  ii.  410 

out  of  what  it  may  issue  ii.  4  1 1 
where  from  the  extent  of 
property  best  rent  can- 
not be  ascertained,  the 
lease  is  void  ii.  4  02 

where  the  ancient  or  usual 
rent  is  to  be  reserved, 
what  is  the  true  rent  ii  400 
should   be    reserved    for 

the  term  ii.  396 

no  objection  that  more  is 

resf^rved  ibid, 

but  if  the  taxes  were  for- 
merly paid  by  the  ten- 
ant, he  must  still  pay 
them  ii.  400 

must  be  reserved  as  for- 
merly ii.  402 
may  be  reserved  out  of 
improvements            ii.  411 
where  the  usual  or  most 


INDEX. 


589 


RENT  UXDER  POWERS  OF 
LE  A  SI  N G,—(  Continued. ) 
where  the  usual  or  most 

rent  is  to  be  reserved  ii  401 
may  mean  produce  as  well 


what  is  a  distinct  reserva- 
tion of  rent  ii. 

of  the  form  in  which  rent 
should  be  reserved  ii. 
See  Rent,. 


as  money 


the  sum  must  be  named 
in  the  lease,  or  it  must 
be  referred  to  a  precise 
standard  ii.  414 

a  reservation  in  the  words 
of  the  power  may  be  in- 
valid ibid, 
at  what  days   it  should  be 

reserved  ii.  403 

reserved  for  lands  within 
the  power,  and  lands  not 
within  it,  operates  as  dis- 
tinct reservations,  where 

ii.  417 
one  rent  reserved,  and  part 
badly     demised,    where 
rent  can  be  apportioned 

420,  421 
to  what   persons   the  rent 

should  be  reserved       ii.  427 
where  power  may  be  given 
to  lessee   to   deduct  the 
expense  of  repairs        ii.  398 
is  apportionable  for  repre- 
sentatives ii.  430 
See  Appointment.  He- 
riots.    Lease.    Pow- 
er to.     Mines.     Re- 
Entnj. 
REPAIRS, 

effect  of  liability  to  repair 
on  the  rent  ii.  397,  398 

REPEATED  REVOCATIONS 
AND  APPOhNTMENTS 
operation  of  them  ii.  48 

REPRESENTATIVES, 

where  they  take  a  power     147 
are  not  objects  of  a  power 
to  appoint  to  their  tesla- 


ibid.    RE-SETTLEMENT, 


426 
427 

75 


lor  or  intestate 

ii.  2G0 

REPUBLICATION, 

See 

WiU. 

RESERVATION 

of  heriots,  &c. 

ii.  429 

Vol.  n. 

50 

where  it  does  not  destroy 
powers 

RESIDUE.     See    Legacies. 
Loss. 

RESULTING  TRUST, 

where  a  part  of  a  fund  is 
appointed,  no  resulting 
trust  for  persons  claim- 
ing under  the  settlement 

ii.  20 
REVERSION, 

an  estate  in,  cannot  be 
granted  under  a  power 
to  create  an  estate  in 
possession  4  98 

but  the  defect  may  be  sup- 
plied in  equity  ibid. 

mere  reversionary  interest 
cannot  be  granted  under 
a  power  intended  as  a 
provision  ii.  273 

where  a  reversionary  lease 
is     within     the     pow^ 

ii.  342.  345.  358 

"  lease  in  reversion,"  the 
signification  of  the  term 
as  applied  to  leases  for 
years  and  lives  ii.  343 

what  amounts  to  a  lease 
in  reversion  ii.  343.  360 

lease  in  possession  good, 
although  the  land  is  in 
the  hands  of  tenants 
from  year  to  year,  if  they 
attorn  ii.  363 

so  if  the  estate  is  in  lease, 
and  the  estate  is  deliv- 
ered up,  a  surrender  will 
be  presumed  ibid. 

so  if  a  tenancy  has  expir- 
ed, but  the  old  tenant 
has  a  right  to  depas- 
ture ii.  365 


690 


INDEX. 


REVOCATION,    POWER 

OF, — (  Coyifwued.) 

the  custom  of  the  country 
will  not  authorize  a  lease 
in  reversion  against  the 
terms  of  the  power  ibid. 

lease  of  part  in  reversion 
not  warranted,  and  part 
in  possession,  if  entire 
wholly  void  ii.  366 

a  reversionary  lease  being 
merely  a  continuation  of 
an  existing  lease,  will 
not  support  it  ii.  365 

when  it  may  be  sold  under 
a  ])Ower  ii.  462 

Sec    Futuro. 
REVOCATION,    POWER 
OF. 

nature  of  it  440 

how  it  operates  ii.  30 

in  what  instruments  it  may 
be  reserved  162 

whether  in  a  conveyance 
nnto  and  to  the  use  of 
the  same  person  ibid. 

partial  power  valid  177 

extends  to  what  estates      ibid, 
to  what  persons  153 

where  it  susj^ends  ihe  pay- 
ment of  portions  ii  5 

where  implied,  although 
not  expressly  given  238 

and  new  appointment  may 
be  executed  by  the  same 
instrument  243 

not  executed  by  mere  re- 
conveyance 314 

executed  by  a  general  dis- 
position ?57 

although  required  by  ex- 
press words  358 

operation  of  revocation, 
where  there  are  several 
powers  363 

may  be  reserved  by  an  ap- 
pointment witliout  an 
express  authority      440.  446 

must  be  reserved  if  ap- 
pointment by  deed  not 
intended  to  be  absolute  243 


instrument  executing  a 
power  of  revocation  re- 
quired to  be  reserved, 
need  not  reserve  a  fur- 
ther power  464 

if  required  to  be  reserved 
by  deed,  cannot  be  re- 
served by  deed,  or  will, 
qu.  258 

will  under  a  power  may  be 
revoked,  although  no 
power  be  reserved  461 

contra  of  a  deed,  although 
authorized  by  the  instru- 
ment creating  the  power  449 

in  an  original  settlement, 
tantamount  to  a  power 
to  revoke  and  limit  new 
uses,  where  452 

contra  in  some  cases  of  a 
power  in  an  instrument 
executing  a  power     455,  456 

or  a  power  to  a  mere  stran- 
ger 458 

where  it  cannot  be  reserv- 
ed 463.  466 

where  it  may  be  reserved 
by  two  to  the  survivor      442 

whether  it  can  be  reserved 
upon  the  execution  of  a 
power  simply  collateral     462 

if  not  executed,  void 
against  the  subsequent 
j)urchaser  ii.  222 

where  it  avoids  a  settle- 
ment against  creditors  ii.  234 

operation  of  repeated  revo- 
cations and  appointments 

ii.  48 
See  Authority.  Bar- 
gain and  Sale.-  Con- 
sideration.  Crown. 
Execution  of  Pow- 
ers. Purchaser.  Vol- 
untary Settlement. 

REVOCATION  OF  WILL, 
by  marriage  of  presump- 
tion,. 1  Vict.  190 
not  by  subsequent  appoint- 
ments, except  j3ro  tanto     354 


INDEX. 


691 


SALE  AND  EXCHANGE, 
POWER  OF, 

affected  by  mortgages,  &c., 
of  tenant  for  life  48 

when  invalid,  exchange 
can  be  made  good  under 
power  67 

but  not  destroyed  by  mort- 
gage of  the  life  estate, 
qu.  62.  73 

nor  by  a  re-settlement     75 

what  charges,  &cc.,  it  over- 
reaches ii.  34 

when  authorized  by  a  will 
or  article  for  a  settle- 
ment ii.  459 

not  too  remote  although 
not  expressly  confined  to 
lives  iu  being,  and  twen- 
ty one  years  afterwards  ii  469 

to  sell  leaseholds  vested  in 
quasi  tenant  in  tail  when- 
ever born,  and  purchase 
real  estates  to  be  re-set- 
tled, void  ii.  468 

how  it  should  be  given      li.  456 

how  it  should  be  execut- 
■ed  ii.486 

tenant  for  life  receiving 
price  of  timber,  sale  by 
trustees  void  ii.   128 

purchaser  bound  by  cove- 
nant of  tenant  for  life  to 
renew  ii.  368 

when  it  ceases  ii.  482 

to  sell  in  case  of  a  deficien- 
cy, or  upon  other  estates 
being  settled,  cannot  be 
executed  till  there  is  a 
deficiency,  or  another 
estate  is  settled  ii.  473 

where  it  authorizes  a  lim- 
itation to  bar  dower     ii.  457 

power  of  sale  does  not  au- 
thorize a  partition        ii.  479 
whether   a   power   of 
exchange  does,  qu.  ibid. 

but  this  may  be  done 
circuitously  under  a 
power  of  sale        ii.  482 


payment  for  owelty  of  ex- 
change, valid  ii.  482 
tenant   for   life  under  the 
power   may   sell  or   ex- 
change with  his  trustees 

ii.  492 
in  what  case  the  power  of 

sale  may  be  exercised  ii.  487 
unlimited  not  too  remote  ii.  472 
See  Mortgage.     Reversion. 
Timber.     Trustee. 

SALE,  POWER  OF, 

where  executors  take  a,  by 

express  devise  129 

where  by  implication         134 

authorizes  a  mortgage  513 

created  by  what  words        ibid. 

where    authorized     by    a 

power  to  charge  ibid, 

where  it  gives  a  right  of 
entry  before  admittance 
to  a  copyhold  ii.  496 

SATISFACTION, 
what   amounts   to   a  satis- 
faction of  a  portion,       ii.   155 
where    parol   evidence    is 

admitted  ii.    156 

cannot  be  presumed  where 
the  intention  is  stated      '^id. 
See   Advancement. 
SCINTILLA  JURIS, 

its  nature  12 

SEAL 
required  could   not  be  dis- 
pensed with  252 
but  now  1   Vict,  dispenses 

with  sealing  of  will  281 

deed   generally,    must    be 

sealed  280 

whether  a  stamp  on  the 
deed  is  equivalent  to  a 
seal  28 1 

what  amounts  to  a  sealing  282 
attestation   omitting   seal- 
ing, bad  309 
See  Defective  Execu- 
tion.    Signing. 
SEISIN. 
j     what   must   be   raised    to 

serve  powers  175 


592 


INDEX. 


SEISIN.— ( Continued) 

See  Devise.     Scivlilla 
Juris.  Trustees,  Foiv- 
er  to  appoint  new. 
SELECTION,  rOWEIl  OF, 
its  operation   upon  an  iin- 
l)liecl  fijift  ii.  246 

SEPARATE  USE. 

See   Estates.     Feme    Covert. 
Joiiituriiis:,  Power  of. 
SETTLEMENT.     See  Vol- 
untary Settleme72t. 
SHELLEY'S  CASE,  RULE  IN, 
operates  after  api)ointment, 
where  ii.  24 

See  Limitations. 
SIGNING 
required  cannot  be  dispens- 
ed with  253.  283 
inability  to  sign  not  an  ex- 
cuse ii.  143 
sealing  is  not  signing, 5em6.  ibid, 
must  be  by  the  donee  him- 
self '  253 
stamping   or   {)rinting   the 

name  283 

a  mark  equivalent  to  sign- 
ing the  name  ibid, 
the  fact  of  signature  should 
be  stated  in  the  attesta- 
tion, where  the  witness- 
es are  required  to  attest 
the  signing  284 
the  54  th  Geo.  3.  c.  168,  ex- 
tends to  a  defective  at- 
testation of  signature 
only 

See    Attestation.     De- 
fective Execution. 
SIMPLY    COLLATERAL 
POWER, 
defined  40 

cannot  be  destroyed  by  the 
donee  45 

nor  by  a  stranger  46 

power  of  revocation  to  a 

stranger  restricted  458 

whether  a  donee  can  re- 
serve a  power  of  revoca- 
tion 462 


SISTER.  See  Defective  Ex- 
ecution. 

SOLEMNITIES 
need  not  to  be  required  to 
the  execution  of  a  power 

155.  251 
required  to  the  execution 
of  a  power,  must  be  com- 
plied with  250 
unless  the  appointment  be 

to  a  charity  254 

where  they  refer  to  all  the 
instruments  by  which  a 
power  is  authorized  to 
be  executed  271 

must  be  perfected   in  the 

lifetime  o(  the  donee         314 
may  be  added  by  the  donee 

himself  275 

required    by   tiie   original 
power,  may  be  varied  by 
a  new  power  reserved      444 
See  Barsrain  and  Sale. 
Sealing.       Signing. 
Tender. 

STAMP.  See     Sealing. 

Signing. 

STATUTE  OF  FRAUDS. 
See    Seali?ig.     Signing. 
Will. 
STOCK 
conversion   of,  not  an   ap- 
pointment 367 
STRANGER 
effect  of  appointment  to     ii.  64 
See  Volunteer. 

SURPRISE.     See  Defective 
Execution. 

SURRENDER, 

where  a  new  lease  will 
amount  to  a  surrender  in 
law  of  an  old  lease        ii.  364 

where  a  surrenderof  an  old 
lease  will  be  ]>resumed  ii.  363 

where  a  surrender  may  be 
taken  and  new  lease 
granted  ii.  366 

See  Reversion. 


INDEX. 


593 


SURVIVORS 

where  surviving  executors 

can  sell 
naked  authority   does  not 

survive 
povi^er  to  survivor  of  two 
cannot  be  executed  by 
both 

power  by  will  to  survivor 
may  he  executed  before 
event  semble  ibid, 

unless  confined  to  par- 
ticular objects 
where  ])ower  to  survivor  is 
defeated  by  a  joint  ap- 
pointment 
where  a  power  to  survivor 
can  be  reserved  upon  a 
joint  appointment 
where  a  power  to  survivor 
can   be    exercised    after 
joint  appointment  ii. 

See  JExecutors.    Limi- 
tations.    Powers. 
SUSPENSION 

of  powers  appendant 
in  gross 
TAXES.       See     Jointuring, 

Power  of.     Rent. 
TENANTS  IN  COMMON, 
by  devise,  in   fault  of  ap- 
pointment, death  of  any 
in  testator's  life  defeats 
the    power   and    devise 
over  pro  tanto 
how  created  in  deeds  exe- 
cuted under  powers 
what  amounts  to  a  tenancy 
in  common  under  an  im- 
plied gift   in   default   of 
api)oinlment  ii.  206.  246 

gift  as,  not  controlled  by 
power  li. 

TENANT  FOR  LIFE, 
granting  an  annuity  secur- 
ed for  years  does  not 
destroy  power  of  sale 
and  exchange 
cannot  defeat  by  his  power 
his  incumbrances 


144 


143 


140 


141 


155 


442 


201 


505 


533 


208 


48 


ibid. 


his  power  not  destroyed  by 
innocent  conveyance  86 

unless  settlement  in- 
consistent with  his 
power  ibid. 

his  powers  to  convey,  by 

statute  226 

lease  or  rent-charge  for 
term  certain,  operates 
under  his  power  418 

how  far  his  covenant  for 
renewal  binds  a  pur- 
chaser ii.  367 
with  a  power  to  appoint  by 
will  how  he  may  sell 
the  estate  80 
may  purchase  or  take  the 
estate  in  settlement  un- 
der the  usual  power  of 
sale  and  exchange,  semb. 

ii.  492 
See      Estate.       Fine. 
Limitations.        Re- 
covery. Timber. 
Time. 
TENDER, 

of  several  sums  necessary 
in  respect  of  distinct 
powers  3*17 

the  fact  of  the  tender 
should  be  stated  in  the 
deed  318 

at  what  place  it  should  be 

made  318 

to  whom  it  should  be  made  319 
TERM 

for  what  term  leases  may 
be  granted  under  low- 
ers ii.  330 
TERMS  FOR  YEARS. 
See    Cestui   que     Trust. 
Estates.        Lease    far 
Years. 
THEN 
where  an  adverb  of  rela- 
tion and  not  of  time      ii.  208 
TIMBER 

tenant  for  life,  receiving 
price  of,  sale  of  land 
void  ii.  128.  488 


60* 


hn 


INDEX. 


TIME,  1 

power  to  fix  time  of  pay- 
ment of  portions,  if  exe- 
cuted   fraudulently,    set  I 
aside                                 ii.  194  j 
power  to  be  executed   six  j 
months   before    the    do-  I 
nee's  death  may  be  cxe-  ' 
cutcd  at  any  time               331  i 
pow  er  given  on  a  conlin-  , 
gent  event  may  be  exe-  • 
ecuted   before   the  hap- 
pening of  the  event         ibid.  | 
power    to    sell    alter    the  | 
death  of  tenant  for  life,  j 
a  sale   cannot   be  made 
in  his  lifetime                     334 
power  given  in  default  of 
issue,  at  what  time  the 
issue  must  fail                    335 
powers     to    be    executed 
when  in  possession,  what 
possession  is  sufficient      339 
what  time  may  be  fixed  iu 

a  power  of  re-entry       ii.  432 
then,  where  an  adverb  of 

relation  not  of  time  ii.  208 
See  Term. 
TOLLS, 

mortgage  of  516 

TREASON, 

power  forfeited  by,  where 
the  execution  of  it  is 
not  annexed  to  the 
mind  or  the  hand  of 
the  donee  21b 

but  it  must  be  executed 

in  the  life  of  the  donee  222 
See  Crown. 
TRUST, 
where   a  pov/er  is    tanta- 
mount to  a  trust  ii.  158 
what  is  a  trust  and   not  a 

recommendation        ii.  171 
See  Feme    Covert.     Re- 
sulting Trust.  Unalien- 
able Trust.    ■ 
TRUSTEE, 
surviving,    where    he    can 
execute  a  power  147 


devise  of  a  trustee,  not  a 
trustee  of  a  power  to  the 
heirs,  &c.  150 

appointed  by  the  court,  not 

entitled  to  a  power  152 

powers  by  statute,  to  ap- 
point new  trustees        ii.  507 
an  infant,  jiowers  by  statute  226 
notice       of      appointment 

should  be  given  to  him     244 
where  heirs  succeed  to  a 

power  to  consent  322 

with  an  equitable  power, 
cannot  exceed  it  out  of 
his  interest  427 

where  estate  may  be  ap- 
pointed to  a  trustee  for 
the  objects  487,  48b 

power  to  appoint  to,  extent 

of  it  477 

effect   of  an    omission    to 
name  trustees  where  re- 
quired by  the  power       ii.  bi- 
the  usual  power  to  appoint, 
in  settlements,  consider- 
ed ii.  500 
cannot  be  controlled  where 
he    has  a   power    of 
consent  32() 
an  execution  will  be  set 
aside  where   his   con- 
sent  is    obtained    by 
fraud  328 
having  a  power  of  selec 
tion    upon   a   bill    filed, 
may  exercise  his  power, 
semb.                               ii.  173 
will  be  restrained  from  ex- 
ecuting  his   })ower   im- 
properly,                         ii.  122 
how  to  act  under  a  power 

to  lease  ii.  315 

See  Equity.   Sale  and  Exch. 
TRUSTEES,  POWER  TO  AP- 
POINT NEW, 
how  they  should  be  exe- 
cuted ii.  501 
whether  the  new  trustees 
must  have    a  seisin   to 
serve  the  uses  ibid- 


INDEX. 


595 


TRUSTEES,  rOWER  TO  AP- 
rOINT  "i^TLW ,— {continued.) 
how  ihey  should  be  creat- 
ed ii.  502 
where      an     appointment 
may  be  made  although 
not  within   the   express 
.  words  of  the  power      ii.  503 
where  authorized  by  a  will 

ii.  500 
where  it  should  be  exercis- 
ed before  a  will  ii.  506 
where   equity  controls  its 
exercise                           ii.  507 
UNALIENABLE    TRUST, 
what  amounts  to  it  207 
See  Feme  Covert. 
USES, 

their   nature     before    and 

since  the  statute  1.  9 

cannot  be  limited  on  uses       9. 
169.  229 
conveyance    unto    and    to 
the    use   may    be    with 
power  of  revocation  162 

conveyance    unto    and   to 
the   use  of  the  same 
j)crson  carries  the  fee   169 
and  a  trust  may  be  graft- 
ed upon  it  il)id. 
whether  a  devise  to  one  to 
uses  operates  under  the 
statute                                 ibid, 
powers   in  wills  where  no 
seisin  is  raised  are  not 
within  the  statute  23b 
See    Bargain   and    Sale. 
Consideration.       Cove- 
nant    to   statid  seised. 
Scintilla  Juris.   Seisin. 
USUAL  RENT                   ii.  400 
USUALLY  LETTEN, 

what  arc  lands  ii.  317 

VALUE, 

of  lands  in  jointure  at  what 
time  to  be  taken  ii.  296 

VESTED  INTERESTS, 
where   the   gifts  of  relate 
only      to      uuappointed 
shares  ii.  204 


VOID    APPOINTMENT, 

where      payable       means 

vested  ii.  208 

its    operation    on    the  es- 
tates ii.  219 
VOID  LEASE.     See  Lease, 

Poicer  to. 
VOID  POWER, 

its  effect 
VOLUNTARY    SETTLE- 
MENT, 
with  power  of  revocation, 
not   destroyed  by  mere 
re-assignment,  152 

VOLUNTEER.       See   De- 
fective Execution. 
WARRANT  OF  ATTORNEY. 

See  Bond.     Judsment. 
WASTE, 

effect  of  re.^itriction  to  give 
power  to  lessee  to  com- 
mit ii.  398 
power  to  commit,  avoids  a 
lease,  where  442 
WIFE.       See     Baron    and 

Feme.     Feme  Covert. 
WILL, 

where  a   power  to  apjioinl 
by   authorizes  an  abso- 
lute assignment  80 
where  a  power  is  by  c<.:i 
struclion  confined  to  a 
will                                        257 
power  to  appoint  by,  where 

it  can  be  barred  79 

revoked  by  partition  where 
l>ower  of  ap[)oinlment 
is  reserved  108 

by  conveyance  to_uses 
to  bar  dower  in  favour 
of  testator  under  a 
contract  for  purchase 
iu  fee  ii.  6 

by  a  covenant  amounting  to 
a  conveyance  ii.  10 

by  cancellation,  &;c.         ibid, 
by  taking  a  conveyance 

of  tile  estate  ii.  15 

contra,  by  a  transfer  of 
the  fund  ibid. 


696 


INDEX. 


WILL, — ( Continued.) 

but  now,  by  1  Virt.  will 
speaks  from  death, 
and  interest  at  death 
passes  ii.  7.  11 

power    over    real    estate 
might   be  reserved  to 
be  executed    by   will 
without  witness 
but    not    to   the    owner 
himself    by    his   own 
will 
executed    by   will   where 
will  not   required,  need 
not   be  in   the  presence 
of  three  witnesses      157. 
power  by  will   duly  exe- 
cuted, a  seal  not  requir- 
ed 
but   now,   by    1    Vict,   all 
wills  must  be  executed 
as  directed  157. 

revoked    by    a    woman's 

marriage,  where 
directing      a      settlement 
where    it    authorizes   a 
power  of  sale  and    ex- 
change 
where  it  gives  a  power  by 
implication  to  executors 
to  sell 
required,  power  cannot  be 
executed  by  deed 

ii. 
but   a  will   being  in  the 
form  of  a  deed  is  im- 
material 
and     equity     may    aid, 
where  ii. 

and      where      general 
words   as    "  writing," 
"  instrument,"    are  in 
the   power,  it  may  be 
executed  by  will 
of   personalty  required  to 
be  duly  executed  and 
attested,  one   witness 
was  sufficient 
but    now   altered   by    1 
Vict.  '         157 


155 


118 


247 


280 


253 


190 


144 


134 

257, 

128 


260 


125 


2G2 


279 


by  a  blind  man  313 

required,  must  be  execut- 
ed as  a  proper  will        280 
so  where  a  "  writing  in 
the  nature  of  a  will," 
is  required  ibid, 

but  the  will  may  be  val- 
id as  to  personalty 
though  void  as  to 
realty  281 

publication    required,   de- 
livery is  sufficient  285 
re-publication    of    cannot 
operate  as  the  execution 
of  a  new  power                  427 
effect  of  revocation  in   a 
will  of  former  appoint- 
ments 363 
in   pursuance  of  a  power 
may  be  confined   to  the 
interest  364 
where  it  operates  as  a  de- 
claration of  use  though 
revoked          •  431 
where  it  is  revoked  by  a 

settlement  ibid, 

or  by  a  contract  ii.  10 

or  by  a  conveyance  (1 
Vict.)  •  ii.  11 

executed    under  a   power 
may  be  revoked  461 

operates  as  a  proper 

will  533,  ii.  10 

lapsed  devises  ii.  13 

operation  of  1  Vict.    ii.l4 
of  personalty  must  be 
proved  as  a  proper 
will  ii.  18 

defect  in  execution  of  will 
of  real  estate  under  a 
j)ower    may    be    sup- 
plied ii.  126 
but    now  not   defect   in 
execution,  &c.  ibid, 
technical  words  not  essen- 
tial 534 
powers    raised     by,    how 

they  operate  239 

o[ieralion  of,  under  1  Vict.   428 

ii.  14 


INDEX. 


59'] 


WILL. — (  Continued.) 

See  Attestation.     Baron 
and  Feme.    Covenant. 
Defective     Execution. 
Devise.   Excessive  Ex- 
ecution.        Executors. 
Feme     Covert.     Fine. 
Legacies.         Survivor. 
Witnesses. 
WITNESSES, 
to  an  appointment  by  will 
of  real  estate  not  ne- 
cessary, where 
but   if    power    by   will 
generally,   three    wit- 
nesses necessary 
contra  of  personalty 
more  than  required,  no  ob- 
jection 
the  number  required  must 

attest  the  appointment 
writing  duly  attested,   re- 
quires only  one  witness   279 
will  duly  attested,  of  lease- 
hold, requires  only  one 
witness  ibid, 

must   be  of  the   rank  re- 
quired 252 
must  be  credible                   ibid, 
must  attest  the  fact  of  sig- 
nature, where                 285 


248 


280 
281 

312 

252 


whether  they  can 
amend  the  attestation 
after  the  death  of  the 
person  executing  the 
power  314 

need  not  sign  an  attesta- 
tion unless  required  226.  313 
signature  must  be  in  their 

presence  if  required       284 
whether  an  acknowledg- 
ment of  signature   is 
sufficient  285 

will  not  duly  attested 
confirmed  by  codicil 
which  is  316 

where  equity  will  relieve, 
although       the      proper 
number  is  wanting        iii  125 
See  Will. 
WORDS, 
by  what,  powers  may  be 
created  117 

WRITING, 

a  will  is  a  247 

See  Will. 
YEARLY  RENT, 

required,   at  what   days  it 
may  be  reserved  ii.  403.  405 
YOUNGER  CHILD, 

when  considered  an  elder 
child  ii.  l&a,  269 


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